Recreational Rights to the Dry Sand Beach in Florida: Property, Custom and Controversy

At the close of the 2018 legislative session Florida Governor Rick Scott signed HB 631 into law. The new law converted local dustups between beachgoers and beachfront landowners into a statewide sandstorm that pitted public rights to access to the dry sand beach against landowners’ private property rights. This article seeks to address the widespread confusion about the scope of and relationship between these respective rights and to rebut confused and exaggerated narratives about the impacts of the new law that have fueled further conflict. The resolution of these issues will have broad policy implications, with significant impact on recreational, property, dignity, economic, and conservation values. Moreover, in an era of ongoing sea-level rise, the pressures on our coastal resources and the conflicts among these values will only increase. The article begins by briefly describing the history of the current controversy and of the legal principle at the heart of the conflict: the doctrine of customary use of Florida’s beaches. After offering a detailed review of the Florida Supreme Court’s landmark case on the customary use doctrine along with subsequent lower court cases interpreting it, it identifies the legal issues that have created widespread confusion regarding the interplay among the common law property rights at issue, local ordinances that recognize and regulate those rights, and the recent state legislation now codified in Fla. Stat. §163.035 (2019). The article concludes by discussing some of the options available to the Florida legislature to resolve the controversy that HB 631 engendered and to address related issues contributing to conflict at the water’s edge along the state’s coastline