Is 'customary use' law unconstitutional? Beachfront homeowners question court precedent

Tom McLaughlin
Northwest Florida Daily News

DeFUNIAK SPRINGS — Attorneys for Walton County will argue at a hearing Tuesday that some property owners' claims about customary use doctrine need to be addressed by the Florida Supreme Court.

A motion by the county seeks to dismiss several counterclaims arguing that Florida courts have relied upon a flawed legal precedent when considering customary use cases. 

One property owner claim states the Florida Supreme Court's "judicial adoption" of the doctrine of customary use is unconstitutional and a violation of the 5th and 14th amendments that protect property rights.

The second states that the state Supreme Court's adoption of the doctrine of customary use is "unconstitutionally vague and violates due process rights protected by the 14th Amendment."

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The next hearing on Walton County's customary use case is scheduled for Tuesday.

Neither claim can be decided at the Circuit Court level, the county's motion to dismiss states.

"The Circuit Court does not have the authority to invalidate Florida customary use doctrine as established by the Florida Supreme Court in (the landmark) Tona-Rama (case)," the motion states. "The Florida Supreme Court in Tona-Rama recognized that the public may acquire rights to utilize the dry sand areas of beaches under Florida law through customary use."

Walton County has been battling beach-front homeowners over beach access since December 2018 after a law was passed stating a judicial declaration of customary use was required before a county could open the dry sand areas across the entirety of its coastline to the public. 

For 34 months a lawsuit filed by the county, as required by law, has inched forward under the supervision of County Judge David Green. Hundreds of lawyers have filed a bevy of motions on behalf of thousands of homeowners as they take their shot at unraveling the county's case.

And as the case plods along, many owners with deeds stating they own beach property from their back doors to the mean high water line have erected no trespassing signs or roped off their parcels to keep beachgoers off their property. 

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In the 1974 case of the City of Daytona Beach vs. Tona-Rama, the Supreme Court found that if the recreational use of the sandy area adjacent to the mean high tide line has been ancient, reasonable, without interruption and free from dispute than such use, as a matter of custom, should not be interfered with by the owner of the property.

The next hearing in Walton County's customary use case is scheduled for Tuesday.

Attorneys for the county say only the Supreme Court can change laws made by the Supreme Court.

"The Circuit Court is bound to follow the law of the Florida Supreme Court even if it does not agree with it," attorneys for the county argued in their motion, citing cases in which this ideal was confirmed.

"The (homeowners') counterclaims are without merit," the motion states. "They are premised on the erroneous contention that this court possesses the legal authority to overrule and declare as unconstitutional the Florida Supreme Court's ruling in Tona-Rama concerning the Doctrine of Customary Use."

The motion to be heard Tuesday also calls into question the timeliness of another property owner's effort to have the county's lawsuit overturned. It says motions claiming the county's original customary use ordinance amounted to an illegal "taking" of land were filed after a 4-year statute of limitations had run out. The original ordinance was passed on April 1 of 2017.

It additionally argues that other homeowners' motions "fail to comply with the rules of civil procedure by pleading opinions, theories, legal conclusions and arguments and failing to plead ultimate facts that state a cause of action." 

The hearing is scheduled to begin at 9 a.m.