Attorneys for private beach owners influenced HB 631

A South Florida Democrat did much of the heavy lifting to guide HB 631 through a Florida Legislature dominated by Republicans.

But state Rep. Katie Edwards-Walpole, D-98th, had input from a law firm that now represents Walton County beach property owners. Attorneys at Hopping Green and Sams helped influence Edwards-Walpole’s decision to amend HB 631 so that only Walton County would feel its impact.

And the impact has been profound.

After July 1, when HB 631 went into effect, coastal property owners in Walton County began posting no trespassing signs and taking action to keep almost everyone, including county tourist development employees, off of the dry sand portions of beach to which they hold deeds.

Proponents of customary use, the theory that beaches have been public property for as long as humans have utilized them, have taken offense at the private owners' actions and are loudly disputing their claims that some portions of the beach are off-limits. Some have even begun testing the private owners’ assertions that they have the right to remove trespassers.

Confrontations are occurring nearly daily between beachgoers and private property owners. Local law enforcement, faced with a quandary over enforcement of trespassing regulations, is often summoned to mediate beach front disputes.

Walton County is alone among 67 Florida counties facing the controversy created by HB 631.

Records show that sometime between November of 2017 and Jan. 11, 2018, HB 631 was amended to exclude Volusia and St. Johns counties — the only two Florida counties other than Walton to have established customary use ordinances — from the bill’s provisions.

While Walton County’s customary use ordinance was shredded by the bill when Gov. Rick Scott signed it into law, Volusia and St. Johns ordinances were allowed to stand, seemingly simply because they were adopted before Jan. 1, 2016.

On Jan. 9, an email was sent from attorney Gary Hunter at Hopping Green and Sams to Edwards-Walpole at the firm of Saul Ewing Arnstein and Lehr, her place of business in Fort Lauderdale.

In the email Hunter states that he and “the lawyers litigating the Walton County case” feared that incorporating Volusia and St. Johns counties into HB 631 would spur more Walton County lawsuits.

“Since the Walton County ordinance was adopted mid-year 2016, can’t we just say ‘this section shall not apply to an ordinance adopted and effective on or before Jan. 2, 2016.’ That would protect Volusia and St. Johns but address the overreaching Walton Ordinance,” Hunter’s email said.

Legislative records show that two days later — the next time the bill came up for legislative consideration — an item had been added to a section labeled “163.035 Ordinances relating to customary use.”

“This section does not apply to an ordinance adopted and in effect before January 1, 2016,” it stated.

Attorney David Theriaque, the architect of Walton’s customary use ordinance, said he and others working during the 2018 legislative session to preserve the local ordinance were alerted to the move to grandfather Volusia and St. Johns counties.

“We asked Mr. Hunter during some of the discussions on that bill to agree to grandfather Walton County, but they refused to do so,” Theriaque said. “It was clear the target of HB 631 was Walton County’s customary use ordinance.”

Theriaque said he built the Walton County ordinance from a template he had used in the 1990s to create a similar ordinance proposal for the City of Destin. He did not model any part of the Walton ordinance on those of Volusia or St. Johns counties.

He said he was not aware of any aspects of the Walton ordinance that could be considered “overreaching,” as mentioned in Hunter’s email.

Theriaque said as HB 631 was being discussed in Tallahassee, opposition to it began building in both Volusia and St. Johns. He said he suspects those counties were grandfathered as a “divide and conquer approach” by people favoring the bill’s passage.

“In order to resolve issues with Volusia and St. Johns, so they would not challenge the bill and not get active in the lobbying process, they grandfathered them so there would not be a red flag to their ordinances, just the Walton County,” he said. “That’s why that language was in there, so they would stand down.”

Hunter was not available for comment regarding the email he sent, and Kent Safriet, an attorney at Hopping Green and Sams who represents several Walton County beachfront private property owners, said he was not sure what the term overreaching referred to in discussing the Walton County customary use ordinance. 

Safriet did note that Walton County's ordinance had generated at least four lawsuits and said that Walton County "supported and was in favor of HB 631" as a compromise to resolve "issues and lawsuits."

 Walton County Attorney Sidney Noyes strongly refuted Safriet's assertion that Walton County at any time supported HB 631.

"At no point did Walton County waiver from its position that the best course of action would have been that no legislative action be taken regarding customary use. Walton County has been clear that it opposed HB 631," Noyes said. "HB 631 was amended in the last weeks of session to provide a process for the adoption of a new customary use ordinance.  Walton County did not oppose the amendment because it was better for Walton County than the original or other potential versions."

HB 631 did not resolve Walton County’s litigation on customary use. In fact, Safriet filed a lawsuit challenging the common law doctrine of customary use after the adoption of HB 631 (Blessey v. Walton Co.). Safriet’s lawfirm, Hopping Green and Sams, lobbied for the adoption of HB 631.   

Edwards-Walpole and Sen. Kathleen Passidomo, who sponsored a companion bill to HB 631, both say the bill language, now codified as State Statute 163.035, has nothing to do with no trespassing signs, dry sand squabbles or legal issues.

“It was not a policy bill, it was a process bill,” said Passidomo, R-Naples.

She said the bill was designed to take customary-use decisions out of the hands of state and local government officials and provide a way for the courts to determine what constitutes private property and what beach is open to the public.

“Anyone who says this bill makes the beach harder to access is totally wrong. It’s a misrepresentation and it bothers me greatly,” Passidomo said.

The Walton County Commission has vowed to take the steps to produce a customary use ordinance that will survive a legal test.

Asked about the influence of Hopping Green and Sams on the final version of HB 631, Edwards-Walpole said she consulted many people as the legislation was being shaped.

Among those was U.S. Rep. Matt Gaetz, Florida’s First District Republican, who worked with Edwards-Walpole to pass legislation legalizing medical marijuana and once described her as “among the top five most effective legislators in either party I've ever worked with.”

Gaetz, whose district includes Walton County, said he recalled a phone call or two between himself and Edwards-Walpole as HB 631 was being formulated.

“She was asking questions about Walton County. Mostly we were discussing the uniqueness of Walton County, why it was so different,” Gaetz said. “I told her this is the only circumstance I know of where property lines are plotted all the way to the water.”

Also providing input, Edwards-Walpole said, were the county attorney and lobbyist for Volusia County, who argued that customary use had already been litigated there.

“Their ordinance codifies the prior court determinations, which is basically what HB 631 does — allows the counties to pass an ordinance that meets constitutional muster since we are dealing with private property and how a customary use determination is made,” Edwards-Walpole said in an email.

She said her bill articulates customary use doctrine in state statute for the first time.

Asked to clarify how Walton County’s ordinance could be considered “overreaching,” Edwards-Walpole said “it’s not about Walton as much as it is ensuring that the uses (whether the court finds support that activities like driving, walking, sunbathing, fishing, etc.) and boundaries (the specific portions of property that is the subject of the customary use ordinance) are supported by the evidence.”

“The overreach may occur, for example, when a county enacts a blanket statement such as ‘all beachfront properties are open to the public for recreational purposes and the board determines that there is customary use,’ ” Edwards-Walpole said.

“Case law would not support this, nor am I as an elected official in a position to say such when property at issue is privately owned.”