December 8, 2021

Rolling Out the 'Unwelcome Mat' to Sarasota Beaches

The right to kick someone off your property, although generally well protected, is not absolute. For example, if law enforcement comes with a warrant, they may not be denied entry. And in Florida, beach ownership does not necessarily mean an absolute right to tell others to leave. Many times, public beach use of private property is protected by the Customary Use Doctrine.

Given the importance of Sarasota’s beaches to the County’s tourism-based economy, ensuring public access to those beaches should be of great concern to the Sarasota County Commission. And yet the Commission recently passed Ordinance No. 2021-034, allowing beachfront property owners to post more signs. An incidental sign ordinance does not sound like a threat to public beach use. But when these signs include familiar jingles such as 'Private Property' and 'No Trespassing', the threat is clear. The new ordinance allows people to erect four incidental signs on their beach property without a permit. Additionally, they may erect 8-foot-tall flags and one sign for every 500 feet along the border of the property. The ordinance passed unanimously. 

Imagine a warm, sunny mid-February afternoon at your favorite Sarasota beach. You are lying on your beach towel surrounded by beach toys watching your children frolic in the water. As the tide comes in, it touches your towel, so you move your beach paraphernalia back toward the drier portion of the beach. Your children join you, and suddenly, from the balcony of a home behind you, you hear, “Yo! Can't you see the 'No Trespassing' signs. Get off my property!” You look around, surprised. Just a few minutes ago, you were having a fine day at the beach. Now you have unwittingly waltzed into the extraordinarily complex battleground of competing property rights.

Now for a deeper dive into what just happened. At first, you were probably on land held for your benefit by the State of Florida. Florida’s Public Trust doctrine protects public access along the shore seaward of the Mean High Water Line. But, as soon as you moved landward of the Mean High Water Line, you may have entered private property. You may be uncertain of the land ownership, if this beach has ever been nourished. After publicly funded beach nourishment, private property that is seaward of the Erosion Control Line is no longer private. Regardless of where all these invisible lines are, you know that you and your parents before you have been coming to this beach for decades! Certainly, you have some claim to put your towel here. This is the rationale behind the Customary Use doctrine. If the beach has been recreationally used by the public in a manner that is “ancient, reasonable, without interruption and free from dispute,” your use of the dry sandy beach should not be interfered with by the owner, even if you are on their private property.

As evidenced by the example above, in Florida, beach ownership does not necessarily confer an absolute right to exclude others. This brings us back to the new Sarasota County sign ordinance. Do we want beach property owners marking off their private property boundaries, when that may have nothing to do with the public's right to enjoy that property? Shell Beach has been embroiled in such controversy for years now. North Casey Key property owners hired private security to tell folks walking over from Turtle Beach that they were no longer allowed on any portion of that beach. With the new Sarasota sign ordinance, law enforcement is in an unenviable spot. What do they protect - the public's ability to fully enjoy our treasured beaches or the private property claims of landowners? Most people will not want to risk getting arrested if there is a 'No Trespassing' sign, even if their presence on the beach is perfectly legal. They may steer clear of such beaches entirely. This ordinance will have a chilling effect on residents' use of our beaches. With enough 'No Trespassing' signs, tourists may be put off enough to never come back.

In essence, the Sarasota County Commission, with its new sign ordinance, has chosen to take the side of beachfront landowners who may or may not care about the Customary Use doctrine. The Commission has given the nod to property owners who may wrongly treat the public as trespassers on the beach. Given Customary Use rights to the beach and the possibility of endless disputes based on incorrectly placed 'Private Property' signs, the County has an obligation to the public to ensure that these signs will not be the basis for removing members of the public from Sarasota beaches. If called to the beach, officers can cite Customary Use and allow the public to remain. The Commissioners have an obligation to craft a much better ordinance and policies that both protect the public's Customary Use along a changing shoreline as well as address the various concerns of beachfront property owners including liability issues, fair taxation, and conduct on the beach. The County must do better. Until then, wind your way down to your favorite beach and enjoy the glory.

For an excellent overview of the legal backdrop for recent controversies over public beach use in Florida, see Recreational Rights to the Dry Sand Beach in Florida: Property, Custom and Controversy by Alyson C. Flournoy, Thomas T. Ankersen, and Sasha Alvarenga.

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