Customary use battle reaches boiling point
New law on beach rights causes stir in North Florida.
DUNE ALLEN BEACH — The Turgeon family from New Orleans was sitting on the beach on a hot Tuesday morning, watching their young children play in the sand, when they were approached by a Walton County sheriff ’s deputy.
The deputy had been called by homeowners in Vizcaya, a multimillion-dollar gated beachfront community, who wanted to enforce trespassing laws on the beach in front of their homes.
“He was nice about it,” Leah Turgeon said as she began packing up her things. “But it’s definitely a hassle. Now we have to move all of our stuff.”
The Turgeon family, who said they were confused about signage and were unaware of where the “public” beach met the “private,” was one of many caught in the cross hairs of the new customary use law that went into effect July 1. The law, called House Bill 631, essentially voids Walton County’s customary use ordinance and allows private property owners the right to claim the beach in front of their homes as private property, up to the mean high-water mark, or wet sand.
Homeowners in the Vizcaya neighborhood have been perhaps the most vocal supporters of the new law in Walton County, and Bill Hackmeyer, a property owner and Homeowners Association president, is a big part of the reason why.
“We had to hire a (security) guard service July 1, which for us is a lot of money,” Hackmeyer said as he walked his golden doodle, Jack, on the beach. “That’s true that we’re rejecting people outside of us from using our beach, because we do not want the county to allege customary use at Vizcaya.”
As the customary use battle continues to wage at the county, state and federal levels, law enforcement agencies are grappling with how to enforce it. And beachgoers are struggling with how to visit the world-renowned and heavily marketed Emerald Coast beaches and enjoy the surf and sand—without getting arrested.
Battles over customary use and private property rights on Northwest Florida beaches go back decades.
The term “customary use” began popping up in Daily News articles in 2000, when beachfront property owners in Destin wrangled with the city council over ordinances allowing the public to use what some homeowners perceived to be their private beaches.
Over the years, lawsuits have been filed in various courts seeking to define customary use in Okaloosa and Walton counties.
Walton County became the hotbed for customary use discussions in the state of Florida in 2016, when commissioners approved an ordinance based on the customary use concept that beach areas have been publicly accessed for as long as humanity has been around, and should therefore remain open to visitors without interference.
The ordinance allowed the public access to certain dry sand portions of the county’s beaches and prohibited signs and fences asserting private property rights.
Many coastal property owners objected to the ordinance, claiming commissioners were allowing people to trespass on land that they legally purchased.
But HB 631, passed by the Florida Legislature this year, voided Walton County’s customary use ordinance as of July 1.
“The illegal law, the unconstitutional ordinance that Walton County passed two years ago, was nullified because the state legislature and the governor realized that they can’t just arbitrarily pass an ordinance that may or may not be constitutional,” Hackmeyer said, adding that he considered HB 631 a “win.”
Hackmeyer hasn’t been the only public supporter of beachfront property owners. Walter E. Blessey Jr., who owns a $4.6 million beachfront home in Dune Allen Beach, filed a federal lawsuit on June 14 that names Walton County as a defendant.
Blessey’s lawsuit, filed in U.S. District Court by a Tallahassee law firm, is unlike others filed thus far. It argues that customary use doctrine is a product of Old English Common Law and therefore not applicable in the United States.
“The common law Doctrine of Customary Use, while valid under England’s common law, is repugnant to the U.S. Constitution and cannot be the law of Florida,” the lawsuit states.
The Walton County Commission asserted in a June press release that “Walton County government officials are vowing to fight the efforts to deprive the public of their long-held rights to the sandy portions of the beach.”
Lawyers for Walton County are currently exploring legal options in the case, and are continuing their process of “providing documentation to support the customary use of Walton County’s beaches,” a county spokesman told the Daily News.
A public hearing has been scheduled for Sept. 6 at which county officials are expected to announced their intent to pass a new customary use ordinance. Following the announcement the county, as provided for in HB 631, can seek a court’s declaratory judgment in favor of customary use doctrine on Walton County’s beaches.
In the most recent legal challenges filed by private property owners, 17 of them, including condominium boards or homeowners associations, have sent letters to county officials over the course of the past few months demanding the county stop allowing its vehicles access to dry sand areas. Each owner is represented by one of four law firms.
Some of the property owners have asked that county trash receptacles on their land be removed and said they will take over garbage collection.
They’ve also demanded that emergency vehicles and code enforcement drive on the wet sand areas as well.
County beach officials have said that such a policy would threaten the entire beach trash collection and pick-up processes.