My first experience with public/private beach issue

Discussion in 'Local Government and Groups' started by organicmama, Apr 11, 2008.

  1. organicmama

    organicmama Beach Fanatic

    Joined:
    Jul 31, 2006
    Messages:
    1,639
    Likes Received:
    338
    Location:
    back in SRB
    :clap::clap::clap::clap::clap::clap:
     
  2. organicmama

    organicmama Beach Fanatic

    Joined:
    Jul 31, 2006
    Messages:
    1,639
    Likes Received:
    338
    Location:
    back in SRB
    What I came up with on FL Statutes was sections 161 & 62B-36 on one site and then specifically 161.091 & 201.15 in a PDF.

    Here's a number we could probably ask about that "statute" from this website:

    http://www.dep.state.fl.us/beaches/programs/bcherosn.htm


    Project Manager Assigned Projects
    Please see below for telephone numbers

    Panhandle
    Phil Ciaravella
    (850) 922-7871



     
  3. swantree

    swantree Beach Fanatic

    Joined:
    Feb 28, 2006
    Messages:
    553
    Likes Received:
    27
    Location:
    SRB
  4. Smiling JOe

    Smiling JOe SoWal Expert

    Joined:
    Nov 18, 2004
    Messages:
    31,648
    Likes Received:
    1,771
    What about 810.09) 3) ?

    :eek: Andy, sorry if this sounds harsh, but we need to rethink your position. This may not be the area which you use, but with that mentality, there will never be more than one or two people fighting for each little section of beach. We need to work together, because even though this may not be the beach you frequent, yours may be next. It will take someone with big beach balls, or a large number of concerned people, to solve this issue of usage of the sandy lower elevation of beach. I don't disagree that deeds may be held on the beach, but read the FL State Supreme Court opinion in my signature line. The bigger issue than technical ownership is knowing what rights convey with that portion of the property. Don't mean to beat you up in particular, and I can tell that you have an interest of some degree. Otherwise, you wouldn't have gone to see the sign for yourself and report back. We just need to bind together on this issue. That is all I really mean by my statement. ;-)
    *********

    [SIZE=-1]810.09 Trespass on property other than structure or conveyance.[/SIZE]
    [SIZE=-1]2. If the property is the unenclosed curtilage of a dwelling and the offender enters or remains with the intent to commit an offense thereon, other than the offense of trespass,

    commits the offense of trespass on property other than a structure or conveyance.[/SIZE]

    [SIZE=-1]
    [/SIZE]

    [SIZE=-1](b) As used in this section, the term "unenclosed curtilage" means the unenclosed land or grounds, and any outbuildings, that are directly and intimately adjacent to and connected with the dwelling and necessary, convenient, and habitually used in connection with that dwelling.[/SIZE]



    ***************

    [SIZE=-1]Now we just have to find the legal definition of "habitual use." A common person like myself may believe that to mean that the person would use the property daily. If we find the definition, then can run a 24-7 video of the "supposed" owner not using the beach at all, we will have an excellent case, establishing that no trespass has occurred.
    [/SIZE]



    [SIZE=-1]Perhaps the sign mentions section 3 of the aforementioned statute, which reads:[/SIZE]
    [SIZE=-1]"[/SIZE][SIZE=-1](3) As used in this section, the term "authorized person" or "person authorized" means any owner, his or her agent, or a community association authorized as an agent for the owner, or any law enforcement officer whose department has received written authorization from the owner, his or her agent, or a community association authorized as an agent for the owner, to communicate an order to leave the property in the case of a threat to public safety or welfare."[/SIZE]


    [SIZE=-1]*********[/SIZE]
    [SIZE=-1]If this is the case, and the sign is referring to #3, the person who posted the sign may believe that he is acting on behalf of the neighborhood association for Dune Allen s/d. The only problem with that is that #3 seems to refer specifically to construction trespass. It is difficult to tell on that gov't website, due to the subsections not being indented. I guess someone needs to accurately relay the info on the sign. Any pics?
    [/SIZE]
     
  5. organicmama

    organicmama Beach Fanatic

    Joined:
    Jul 31, 2006
    Messages:
    1,639
    Likes Received:
    338
    Location:
    back in SRB
    :wave:I'll take that as a compliment!:floor:How's the family doing?
     
  6. organicmama

    organicmama Beach Fanatic

    Joined:
    Jul 31, 2006
    Messages:
    1,639
    Likes Received:
    338
    Location:
    back in SRB
    No pics from me. Broken camera.
     
  7. organicmama

    organicmama Beach Fanatic

    Joined:
    Jul 31, 2006
    Messages:
    1,639
    Likes Received:
    338
    Location:
    back in SRB
    What about this?
    ------------------------

    Number: AGO 2004-04
    Date: February 13, 2004
    Subject: Law Enforcement Officer, trespass on private property


    Interim Police Chief Ronnie Bishop
    Fort Walton Beach Police Department
    7 Hollywood Boulevard Northeast
    Fort Walton Beach, Florida 32538

    RE: LAW ENFORCEMENT OFFICERSTRESPASSPROPERTY authority of law enforcement officer to communicate order to leave private property on behalf of private landowner. ss. 810.08 and 810.09, Fla. Stat.

    Dear Chief Bishop:

    You ask substantially the following question:

    Does an on-duty law enforcement officer have the authority to enforce a private landowner's written authorization to communicate an order to an alleged trespasser to leave the private property?

    According to your letter, the Fort Walton Beach Police Department maintains a list of businesses, residences, and vacant property where the owner has given the department a letter authorizing law enforcement officers to remove trespassers from the property. Your office is aware of Attorney General Opinion 90-08, in which this office considered the authority of law enforcement officers to act as the agents of private landowners in ordering trespassers from private property. You ask whether this office maintains the opinion reached in Attorney General Opinion 90-08.

    Sections 810.08 and 810.09, Florida Statutes, respectively define the offenses of trespass in a structure or conveyance and trespass on property other than a structure or conveyance. For example, section 810.09(1)(a), Florida Statutes, states that "[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." Furthermore, section 810.09(2)(b), Florida Statutes, provides:

    "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, s. 775.083."

    Similarly, section 810.08(1), Florida Statutes, provides that "[w]hoever, without being authorized, licensed, or invited, willfully enters or remains in any structure or conveyance, or, having been authorized, licensed, or invited, is warned by the owner or lessee of the premises, or by a person authorized by the owner or lessee, to depart and refuses to do so, commits the offense of trespass in a structure or conveyance."

    Thus, to commit a trespass under the above provisions, 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. The statute permits an "authorized person" to "stand in the shoes of" the owner and order a trespasser to leave. The Supreme Court of Florida, interpreting the term "authorized person" for purposes of section 810.09, Florida Statutes, has stated:

    "'Common understanding' dictates that the phrase 'other authorized person' is to be read in light of the preceding phrase 'owner of the premises' . . . . In regard to private land, an 'authorized person' is one who receives either express or implied authorization from the owner."[1]

    In Attorney General Opinion 90-08, this office addressed whether on-duty police officers could be pre-authorized to act as the agents of a private landowner for the purpose of communicating to an alleged trespasser an order to leave the private property pursuant to section 810.09(2)(b), Florida Statutes. This office found no statutory provision that specifically authorized local law enforcement officers to be designated as agents of private persons. Moreover, it was concluded that the predesignation of on-duty law enforcement officers to act as agents of private landowners to communicate an order to leave the private property would serve primarily a private purpose in violation of Article VII, section 10, Florida Constitution.[2] This office noted, however, that there may be instances where, in light of an immediate threat to the public safety and welfare, it is in the public's interest to permit a law enforcement officer to order, on behalf of a private landowner, an alleged trespasser to leave the property.[3]

    During the 2000 legislative session sections 810.08 and 810.09, Florida Statutes, were amended to provide a statutory definition of the term "authorized person." Section 810.09(3), Florida Statutes, as amended by section 5, Chapter 2000-369, Laws of Florida, provides:

    "As used in this section, the term 'authorized person' or 'person authorized' means any owner, or his or her agent, or any law enforcement officer whose department has received written authorization from the owner, or his or her agent, to communicate an order to leave the property in the case of a threat to public safety or welfare." (e.s.)

    Similarly, section 810.08(3), as amended by section 4, Chapter 2000-369, Laws of Florida, defines the term "person authorized" to mean "any owner or lessee, or his or her agent, or any law enforcement officer whose department has received written authorization from the owner or lessee, or his or her agent, to communicate an order to depart the property in the case of a threat to public safety or welfare." (e.s.)

    An examination of the legislative history of the 2000 amendments indicates that the definitions to sections 810.08 and 810.09, Florida Statutes, were added to address the 1990 opinion of this office.[4] Thus, unlike the situation presented in Attorney General Opinion 90-08, there is now specific legislative authorization for a law enforcement officer to act as an "authorized person" of a private landowner to order an alleged trespasser to leave the private property in the case of a threat to public safety and welfare when the law enforcement agency has received written authorization from the owner.

    Accordingly, I am of the opinion that an on-duty law enforcement officer has the authority to enforce a private landowner's written authorization to communicate on behalf of the landowner an order to an alleged trespasser to leave the private property in the case of a threat to public safety or welfare. To the extent that previous opinions of this office are inconsistent with the conclusion reached herein, they are hereby modified.

    Sincerely,



    Charlie Crist
    Attorney General

    CC/tjw

    ----------------------------------------------------

    [1] State v. Dye, 346 So. 2d 538, 541-542 (Fla. 1977).

    [2] Article VII, s.10, Fla. Const., prohibits the use of public funds for a private purpose, by precluding the state, a county or municipality or agency thereof from using its taxing power or credit to aid any private interest or individual.

    [3] This office noted that such situations would depend upon the particular facts and must be determined on a case by case basis.

    [4] See Senate Staff Analysis and Economic Impact Statement on CS/SB 1422, dated April 20, 2000, stating that sections 2 and 3 of the bill

    "amend ss. 810.08 and 810.09, F.S., respectively, to provide definitions for "authorized person" and "person authorized." These terms are defined to include the owner or his or her agent or any law enforcement officer whose department has received written authorization from the owner or his or her agent to communicate an order to depart the property in the case of a threat to public safety or welfare. This provision is designed to address a 1990 Attorney General Opinion which stated that there exists no authority to preauthorize on-duty police officers to act as a private landowner's agent in warning individuals to leave the private landowner's property."

    While CS/SB 1422 died on the calendar, the identical language was added to SB 2252 which was enacted as Ch. 00-369, Laws of Fla. See Senate Floor Debate on SB 2252, April 5, 2000, Tape 3 of 13, in which Senator Bronson, in explaining the amendment to the bill which added the language defining "authorized person" and "person authorized," stated that "[t]his is the subject matter of SB 1422 which is on special order."
     
  8. ASH

    ASH Beach Fanatic

    Joined:
    Feb 4, 2008
    Messages:
    2,157
    Likes Received:
    435
    Location:
    Roosevelt, MN
    I went to this home on the beach and took the following picture. the sign seems kind enough. The statute is 810.09 dealing with tresspass. The home is for sale. I hung around a bit hoping someone would come out and talk with me about the sign. No luck. The sign is about 10 paces from a fence and sea oats they have in place and I paced out 45 steps to the wet sand line from the sign.
    Someone drove between the sign and the fence, maybe to try to get a rise out of the homeowners that I believe was the TDC as the tracks went to the trash receptacle from the property.
    I didn't take offense at the sign as it seems kind enough.
    The owners are possibly trying to make their property look as large as they can for a potential sale.
    I'll post the sign just as soon as I pull it from the gallery. Be right back.
     
    Last edited: Apr 16, 2008
  9. ASH

    ASH Beach Fanatic

    Joined:
    Feb 4, 2008
    Messages:
    2,157
    Likes Received:
    435
    Location:
    Roosevelt, MN
    As they say; Here's your sign!

    [​IMG]
     
  10. Smiling JOe

    Smiling JOe SoWal Expert

    Joined:
    Nov 18, 2004
    Messages:
    31,648
    Likes Received:
    1,771
    Thanks for posting the sign. With the dune fencing in the background, I can see someone posting signs to keep people off of the little dunes which exist there. With the sign being one lot away from the Public Park, I cannot help but think that this sign belongs to one person, and not the Dune Allen Sub-division. According to the plat, the property lines for that lot have a set distance, which doesn't go to the Mean High Water Mark. Perhaps that sign is marking the southern corner boundary of the property. Without having specific boundaries marked and identified, it is difficult for one to know the area where this owner is claiming he holds title. Maybe the sign is someone polite, because the person who posted it cannot force people to walk by the water's edge, so he is just encouraging it via this sign. I don't know. Any thoughts?
     
  11. Smiling JOe

    Smiling JOe SoWal Expert

    Joined:
    Nov 18, 2004
    Messages:
    31,648
    Likes Received:
    1,771
    beachsio2,
    I think the TDC guys forget to drop their rakes sometimes. I often see their tracks un-raked, lately.
     
  12. Andy A

    Andy A Beach Fanatic

    Joined:
    Feb 28, 2007
    Messages:
    4,403
    Likes Received:
    1,659
    Location:
    Blue Mountain Beach
    SJ, I didn't mean to leave the impression I was not concerned with ALL the beach by what I said, but I see how it could be interpreted that way. I agree with you 100%. (Someone needs to instruct me on how to use only part of a quote when responding to a post.)
     
  13. BeachSiO2

    BeachSiO2 Beach Fanatic

    Joined:
    Jun 16, 2006
    Messages:
    3,294
    Likes Received:
    737
    That's why I deleted my post. I was unsure and didn't want to post incorrect information. I know in May they are asked not to rake due to turtle nesting and sometimes they are asked to rake. It can be somewhat confusing.
     
  14. swantree

    swantree Beach Fanatic

    Joined:
    Feb 28, 2006
    Messages:
    553
    Likes Received:
    27
    Location:
    SRB
    Baby has a cold he's trying to fight off.:roll:....all is well!:D
     
  15. JustaLocal

    JustaLocal Beach Fanatic

    Joined:
    Jul 11, 2007
    Messages:
    447
    Likes Received:
    49
    Location:
    SRB
    I agree it is polite enough, but it is still misleading. Most visitors that see it will assume they are trespassing if they sit south of the sign. The line about walking along the waters edge helps convey that false impression. This property extends no further south of back deck than 65 feet. None of the properties east from the public access to the next public dune walkover extend to MHW.

    This is not an issue of private property but of a beachfront homeowner trying to keep visitors off of public property. That is wrong. I'm also concerned that the lifeguard stationed at the Dune Allen access does not know where the public beach is. I hope he/she is not assisting in this deception.
     
  16. Andy A

    Andy A Beach Fanatic

    Joined:
    Feb 28, 2007
    Messages:
    4,403
    Likes Received:
    1,659
    Location:
    Blue Mountain Beach
    I spoke briefly to the life guard on duty and he stated that while he was aware of the beach usage situation, he tried to stay away from any opinion one way or the other. I can certainly understand his position and agree with his stance completely.
     
  17. organicmama

    organicmama Beach Fanatic

    Joined:
    Jul 31, 2006
    Messages:
    1,639
    Likes Received:
    338
    Location:
    back in SRB
    That's what the lifeguard I spoke to said also. My guess is they don't want to get into anything more specific than that with either property owners or beach-goers at all. It would make their lives pure hell if they did say more than that.
     
  18. organicmama

    organicmama Beach Fanatic

    Joined:
    Jul 31, 2006
    Messages:
    1,639
    Likes Received:
    338
    Location:
    back in SRB
    That sign was already up when we got there. He actually was putting the other sign (south side) up, which is what caught my attention in the first place, that & his observation of us. And, if it only had to do with dune restoration, wouldn't it be placed in front of the dunes, just like in Topsail, where the signs about not walking on dunes are actually next to the dunes & not out on the beach?

    Again, whether he's politely doing posting something or not, the issue that our beaches have become such a private vs. public beach argument is what I do not understand. Why would you buy property next to a public access & then have an issue with the public? Of course, the key to getting locals & visitors alike to clean up IS an issue, but that's not the way to solve that.
     
  19. organicmama

    organicmama Beach Fanatic

    Joined:
    Jul 31, 2006
    Messages:
    1,639
    Likes Received:
    338
    Location:
    back in SRB
    Thanks for posting!


     
  20. JustaLocal

    JustaLocal Beach Fanatic

    Joined:
    Jul 11, 2007
    Messages:
    447
    Likes Received:
    49
    Location:
    SRB
    I rode by the access today to look for myself. It appears his sign is further north than when he first posted it last year. Still, the intent is obviously to keep the public (at the Dune Allen access) from going any further east than his sign rather than to prevent people from disturbing his dune vegetation.

    There weren't too many people on the beach so it wasn't crowded. It sure is a beautiful day! The breeze was a little too cool for swimming, but perfect for lounging, walking, or cycling!

    I am glad to hear the lifeguard is not giving any information rather than false information.
     

Share This Page