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The following document is a legal opinion regarding public use of the beaches of Florida, and whether or not adjacent land owners can deny public use of sandy beaches on, or near, their property.
MARTIN
COUNTY, FLORIDA
INTER-OFFICE
MEMORANDUM
TO: Marshall L. Wilcox
DATE:
March 15, 1999
County
Commissioner, District 1
FROM: Michael A. Rodríguez
FILE:
leg99m.265
Assistant
County Attorney
SUBJECT: Bathtub Beach "No Trespassing"
REF:
e-mail, 16:09:44
Signs March 12, 1999
ISSUE
We
have received your inquiry concerning the status of "No Trespassing -
Private Property" signs located on the beach portion near the northern
property line of Bathtub Reef Beach Park. This question raises the following
issue: Whether the owner of a beach front parcel can restrict general public's
access to the sandy area of the beach?
ANALYSIS
A
beach front parcel owner CANNOT restrict the access of the general public to the
sandy area of the beach. The Supreme Court of the State of Florida held, in the
case of City of
Daytona Beach v. Tona-Rama, Inc., 294 So.2d 73 (Fla. 1974), that:
The
beaches of Florida are of such a character as to use and potential development
as to require separate consideration from other lands with respect to the
elements and consequences of title. The sandy portion of the beaches are of no
use for farming, grazing, timber production, or residency -- the traditional
uses of land -- but has served as a thoroughfare and haven for fishermen and
bathers, as well as a place of recreation for the public. The interest and
rights of the public to the full use of the beaches should be protected.
Id.,
at 77.
With
these interests in mind the Court stated that:
If
the recreational use of the sandy area adjacent to mean high tide has been
ancient, reasonable, without interruption and free from dispute, such use, as a
matter of custom, should not be interfered with by the owner. However, the owner
may make any use of his property which is consistent with such public use
and not calculated to interfere with the exercise of the right of the public
to enjoy the dry sand area as a recreational adjunct of the wet sand or
foreshore area. . . . . This right of customary use of the dry sand area of
the beaches by the public does not create any interest in the land itself.
Although this right of use cannot be revoked by the land owner, it is
subject to appropriate governmental regulation and may be abandoned by the
public. (Emphasis added)
Id.,
at 78.
The
placement of poles and signs by the owner of the beach front parcel constitutes
an interference with the "exercise of the right of the public to enjoy the
dry sand area." Bathtub Reef Beach Park has been at that location since
1983. The public has used the sandy area of the beach to access the other public
beach access several feet to the north of the private beach front parcel. This
use has been "ancient, reasonable, without interruption and free from
dispute" until the erection of the poles and signs. The public, however,
may not trespass landward of the dunes. But access to the sandy areas cannot be
interfered with by the private property owner. The rights of the owner of the
dry sand area may be compared to rights of a part-owner of a land-locked
nonnavigable lake, as described in the case of Duval
v. Thomas, 114 So.2d 79 (Fla. 1959).
The
lifeguards at Bathtub Reef Beach Park may instruct those patrons that access is
allowed over the sandy area adjacent to mean high water mark. The Parks and
Recreation Department may also wish to erect signs as to this effect, informing
the public that walking on the sand north of the park area does not constitute
trespassing.
MAR
cc:
Board of County Commissioners
Russ
Blackburn, County Administrator
Randall
H. Reid, Deputy County Administrator
Daniel
D. Hudson, Assistant County Administrator
Gary
K. Oldehoff, County Attorney
Robert Denison, Parks and Recreation Director
These pages are taken from sources that are assumed to be public domain. If any copyrighted material is contained within these pages, please notify the webmaster at gregs@tampabay.rr.com and those pages will be removed immediately.