Florida Senate - 2009                                     SB 488
       
       
       
       By Senator Justice
       
       
       
       
       16-00505-09                                            2009488__
    1                        A bill to be entitled                      
    2         An act relating to public access to beaches; creating
    3         part V of ch. 161, F.S.; providing definitions;
    4         providing policy and effect; declaring that the public
    5         policy of this state is to provide free access to
    6         public beaches; prohibiting persons from restricting
    7         access; prohibiting obstruction of beach access under
    8         certain conditions; prohibiting the use of signs
    9         declaring that a public beach is private property;
   10         providing that a violation of such prohibition is a
   11         first-degree misdemeanor; providing a penalty;
   12         prohibiting a governmental entity from placing an
   13         obstruction upon a public beach under certain
   14         conditions; prohibiting ordinances that limit public
   15         access; authorizing owners of land within a specified
   16         distance of certain coastal waters to record or revoke
   17         a notice concerning the granting of permission for the
   18         public's recreational use of the land; providing
   19         limitations on the duty or liability of an owner while
   20         such a notice is recorded; prohibiting an owner from
   21         preventing certain public uses of the land while such
   22         a notice is recorded; providing for the use of prima
   23         facie evidence in suits to exclude the public from
   24         accessing and using a sandy beach; requiring notice to
   25         the Board of Trustees of the Internal Improvement
   26         Trust Fund of the sale or closure of access to a
   27         public beach; providing for the purchase of such
   28         access by the board; providing an effective date.
   29         
   30  Be It Enacted by the Legislature of the State of Florida:
   31         
   32         Section 1. Part V of chapter 161, Florida Statutes,
   33  consisting of sections 161.80, 161.81, 161.82, 161.83, 161.84,
   34  and 161.85, is created to read:
   35                               PART V                              
   36                         PUBLIC BEACH ACCESS                       
   37         161.80Definitions.—As used in this part, the term:
   38         (1)“Beach access” means the public's right to laterally
   39  traverse and make recreational use of the sandy beaches of this
   40  state where such access exists on or after July 1, 1987, or the
   41  public has established an accessway through private lands to
   42  lands seaward of the mean high tide or water line by
   43  prescription, prescriptive easement, or any other legal means,
   44  and the public's right of ingress and egress to public beaches
   45  and the waters of the Gulf of Mexico, the Atlantic Ocean, or the
   46  Straits of Florida.
   47         (2)“Public beach” means any sovereign beach, any
   48  recreational beach owned or operated by the state or a local
   49  government, or any sandy beach area where the public has
   50  established or acquired a right of use by prescription,
   51  dedication, custom, or any other legal means.
   52         (3)“Recreational use” includes walking, hiking, fishing,
   53  swimming, surfing, sunbathing, nature study, any other
   54  traditional beach activities; visiting historical,
   55  archaeological, scenic, or scientific sites; accessing a public
   56  beach; and providing noncommercial parking areas in proximity to
   57  beach access points.
   58         (4)“Sovereign beach” means that portion of a sandy beach
   59  lying seaward of the line of mean high water or a recorded
   60  erosion control line.
   61         161.81Declaration of policy and effect.—
   62         (1)Under the Environmental Protection Act of 1971, a
   63  public beach is a natural resource, and it is the policy of this
   64  state that the public, individually and collectively, have free
   65  and unrestricted right to enter and use this resource.
   66         (2)This part does not affect in any way the title held to
   67  land in this state which is adjacent to any beach on the Gulf of
   68  Mexico, the Atlantic Ocean, or the Straits of Florida, and does
   69  not reduce or limit in any way the rights of the public in
   70  public beaches which have been defined in law or custom.
   71         (3)Any sandy beach below the mean high water line or a
   72  recorded erosion control line is declared public, and a private
   73  entity, absent a board of trustees deed or authorization, may
   74  not restrict access along the shoreline across such beaches.
   75         161.82Unlawful barriers to use of public beaches.—
   76         (1)(a)A person may not:
   77         1.Obstruct or cause obstruction of beach access by
   78  fencing, barricading, or causing any other obstruction, unless
   79  such obstruction is otherwise authorized by law.
   80         2.Display or cause to be displayed on any public beach any
   81  sign, marker, or warning or communicate in any other manner that
   82  a public beach is private property.
   83         (b)A person who violates this subsection commits a
   84  misdemeanor of the first degree, punishable as provided in s.
   85  775.082 or s. 775.083.
   86         (2)A governmental entity may not:
   87         (a)Place or cause to be placed any fencing, barricade, or
   88  any other obstruction upon a public beach, unless such
   89  obstruction is a response to public safety or an emergency or is
   90  otherwise authorized by law. This subsection does not prevent
   91  any agency, department, institution, subdivision, or
   92  instrumentality of the state or of the Federal Government from
   93  erecting or maintaining any groin, seawall, barrier, pass,
   94  channel, jetty, or other structure as an aid to navigation, as
   95  protection of the shore, or for fishing, safety, or other lawful
   96  purpose.
   97         (b)Adopt an ordinance, resolution, or development order
   98  that has the effect of limiting the public's access to a public
   99  beach, except as necessary to protect the public's health,
  100  safety, and welfare.
  101         161.83Owner permission to access beaches; limitation of
  102  liability.—
  103         (1)The holder of record title to land within 1,500 feet of
  104  the Gulf of Mexico, the Atlantic Ocean, or the Straits of
  105  Florida may record in any county in which any part of the land
  106  is situated a description of the land and a notice reading
  107  substantially as follows: “The right of the public or any person
  108  to make recreational use of the above described land or any
  109  portion thereof, other than any use expressly allowed by a
  110  written or recorded map, agreement, deed, or dedication, is by
  111  permission of owner pursuant to section 161.83, Florida
  112  Statutes.” The holder of record title may revoke such notice by
  113  recording a notice of revocation in each county where the notice
  114  is recorded. The recording of a notice under this subsection
  115  does not affect any right of the public which was vested at the
  116  time of recording through prescription, dedication, custom, or
  117  other legal means.
  118         (2)During any period when notice concerning a parcel of
  119  land is recorded and not revoked:
  120         (a)If the dedication of all or a portion of the parcel to
  121  public use or the public's prescriptive or customary right in
  122  all or a portion of the parcel is at issue in a legal
  123  proceeding, the recorded notice is conclusive evidence that the
  124  use of the parcel by the public or by any user for any purpose,
  125  other than a use expressly allowed by a written or recorded map,
  126  agreement, deed, or dedication, is permissive and with the
  127  consent of the holder of record title to the parcel.
  128         (b)The holder of record title to the parcel may not
  129  prevent a public use of the parcel which is appropriate to the
  130  notice by physical obstruction, notice, or otherwise.
  131         (c)The holder of record title to the parcel does not owe a
  132  duty of care to keep the parcel safe for entry or use by the
  133  public or to give warning to persons entering or going of any
  134  hazardous conditions, structures, or activities thereon, and
  135  such titleholder does not, by providing public recreational use
  136  of the parcel:
  137         1.Extend any assurance that the parcel is safe for any
  138  purpose;
  139         2.Incur any duty of care to any person who goes on the
  140  parcel; or
  141         3.Become liable or responsible for any injury to persons
  142  or property caused by the act or omission of a person who goes
  143  on the parcel.
  144         161.84Prima facie evidence.—In a suit brought or defended
  145  under this part or whose determination is affected by this part,
  146  proof of record title to a sandy beach that is landward of a
  147  sovereign beach is not prima facie evidence that the titleholder
  148  has a right to exclude the public from accessing and using the
  149  sandy beach or any associated accessway. A showing that property
  150  lies within the area from mean low tide to the seasonal high
  151  water line, as defined in s. 161.053(6)(a), is prima facie
  152  evidence that the title of the littoral owner does not include
  153  the right to prevent the public from using the property for
  154  access and use of a public beach or for ingress and egress to
  155  the waters of the Gulf of Mexico, the Atlantic Ocean, or the
  156  Straits of Florida.
  157         161.85Public purchase of beach access.—
  158         (1)By January 1, 2010, each county and municipality shall
  159  provide a list to the Board of Trustees of the Internal
  160  Improvement Trust Fund of each dead-end street within its
  161  jurisdiction which may be used for the purpose of accessing and
  162  using a public beach. The list must specify the location of each
  163  street and be provided at no charge to the board.
  164         (2)Notwithstanding any other provision of law, a county or
  165  municipality may not sell or convey any interest in beachfront
  166  land or abandon, close, relinquish, or vacate a street, road, or
  167  easement that provides an accessway to a public beach until the
  168  Board of Trustees of the Internal Improvement Trust Fund has an
  169  opportunity to receive or purchase such interest or accessway in
  170  accordance with the following:
  171         (a)If a county or municipality receives a petition
  172  requesting that it sell, convey, abandon, close, relinquish, or
  173  vacate any such interest or accessway or decides to take such
  174  action without receiving a request, the county or municipality
  175  shall, before consideration of any private offers, notify the
  176  board that the interest or accessway is available. The notice
  177  must be sent by certified mail, return receipt requested.
  178         (b)Within 45 days after receipt of the notice, the board
  179  shall determine by resolution whether it proposes to devote such
  180  interest or accessway to public use for the purpose of accessing
  181  and using the public beach. Such purpose is declared to be a
  182  public purpose.
  183         1.If the board proposes to devote the interest or
  184  accessway in perpetuity for such purpose, within 120 days after
  185  receipt of the notice, it shall adopt a resolution that
  186  specifies such intent and provides a tentative plan for the
  187  development of the interest or accessway and a tentative
  188  schedule that specifies a date that development will commence,
  189  which must be within 2 years after the date of the resolution,
  190  and a date that development will be completed, which must be
  191  within 4 years after the date of the resolution. If appropriate,
  192  the board's agreement to maintain the land in its current use
  193  and condition shall be considered a sufficient plan of
  194  development. The board shall send a certified copy of the
  195  resolution to the county or municipality by certified mail,
  196  return receipt requested, within 5 days after adoption but
  197  before the end of the 120-day period. The county or municipality
  198  that timely receives the certified copy of the resolution shall
  199  convey the land to the board upon such terms and conditions and
  200  at such price as the county or municipality determines.
  201         2.If the board decides not to devote such interest or
  202  accessway in perpetuity for such purposes, it shall adopt a
  203  resolution reflecting such determination and send a certified
  204  copy of the resolution to the county or municipality by
  205  certified mail, return receipt requested, within 5 days after
  206  adoption.
  207         (c)The failure of the board to adopt and send a resolution
  208  pursuant to this subsection constitutes the board's
  209  determination not to devote such interest or accessway in
  210  perpetuity to a public use for the purpose of accessing and
  211  using a public beach.
  212         Section 2. This act shall take effect July 1, 2009.