Walton County customary use case: Is it constitutional?

Tom McLaughlin
Northwest Florida Daily News

DeFUNIAK SPRINGS — Attorneys for some of the 1,194 Walton County homeowners whose properties would be affected by a declaration of customary use said Tuesday they will challenge the constitutionality of the Florida Supreme Court's "judicial adoption" of the doctrine at whatever court will allow them to do so.

Attorney Eric Krebs argued on behalf of Walton County on Tuesday for the dismissal of two motions filed by attorneys representing beachfront property owners that questioned the constitutionality of Florida's interpretation of customary use.

Krebs said since the state Supreme Court issued a ruling in the 1974 Tona-Rama case that defined customary use as it applied to this state's beaches, the high court would be the only judicial entity that could declare it unconstitutional.

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Walton County's Circuit Court, Krebs argued, is the wrong place for the motions to be filed for consideration, and he asked that they be dismissed.

Speaking for the property owners, attorney Kent Safriet, essentially agreed. He said that although he believes a ruling on the constitutionality can be made at the Circuit Court level, he is also aware County Judge David Green has indicated in the past he is hesitant to do so.

Therefore, Safriet said, the matter must be pushed along to the Supreme Court. He asked Judge Green to rule on the motions so that they could be appealed to a higher judicial authority. 

"We're asking the judge to rule on the merits of our motion. If Judge Green cannot make that decision, then send it on up to the Appeals Court, and if the DCA can't rule on it, we'll seek pass-through jurisdiction to the Supreme Court," Safriet said after Tuesday's hearing.

A sign marks the boundary between Rosemary Beach property and Inlet Beach. The latest hearing in Walton County's customary use case centered on the constitutionality of a 1974 Florida Supreme Court ruling.

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Green said he would rule on the motions to dismiss at a later date.

Krebs declined comment.

Ever since Walton County filed a lawsuit in 2018 seeking to have its beaches declared public by virtue of customary use — the English Common Law doctrine that states land that has been used by everyone from time immemorial belongs in the public domain — attorneys for private property owners have raised questions about the Tona-Rama ruling and the issues raised by its vague wording.

In the 1974 case, 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 first property owner claim Krebs argued to dismiss Tuesday calls Florida's interpretation of customary use unconstitutional because it violates the Fifth and 14th Amendments to the U.S. Constitution. The Fifth Amendment states land cannot be taken from a person without fair compensation and the 14th Amendment guarantees due process be provided before the property can be taken from a landowner.

The homeowners' attorneys argue that Walton County's declaration of customary use amounts to a government taking of property from 1,194 beach parcel owners.

The second motion 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."

While county attorneys are charged with proving that Walton's beaches have been enjoyed by the public to a standard that meets the qualifications of ancient, reasonable, without interruption and free from dispute, lawyers representing the property owners said the 1974 Supreme Court never defined what those terms mean in Florida law.

And while both sides of the case seem to agree that the Florida Supreme Court is the only tribunal that can rule on the constitutionality of customary use, Safriet said the county is stonewalling to keep a case that's been mired in county court for three years from getting there.

"It seems everything the county is doing is designed to delay that or make it impossible or at least difficult," he said.