Florida Senate - 2018                          SENATOR AMENDMENT
       Bill No. CS/HB 631, 1st Eng.
                              LEGISLATIVE ACTION                        
                    Senate             .             House              
                Floor: 1/AD/2R         .                                
             03/05/2018 10:44 AM       .                                

       Senator Passidomo moved the following:
    1         Senate Amendment (with title amendment)
    3         Delete lines 347 - 358
    4  and insert:
    5         163.035 Establishment of recreational customary use.—
    6         (1) DEFINITION.—The term “governmental entity” includes an
    7  agency of the state, a regional or a local government created by
    8  the State Constitution or by general or special act, any county
    9  or municipality, or any other entity that independently
   10  exercises governmental authority.
   12  governmental entity may not adopt or keep in effect an ordinance
   13  or rule that finds, determines, relies on, or is based upon
   14  customary use of any portion of a beach above the mean high
   15  water line, as defined in s. 177.27, unless such ordinance or
   16  rule is based on a judicial declaration affirming recreational
   17  customary use on such beach.
   20  that seeks to affirm the existence of a recreational customary
   21  use on private property must follow the procedures set forth in
   22  this subsection.
   23         (a) Notice.—The governing board of a governmental entity
   24  must, at a public hearing, adopt a formal notice of intent to
   25  affirm the existence of a recreational customary use on private
   26  property. The notice of intent must specifically identify the
   27  following:
   28         1. The specific parcels of property, or the specific
   29  portions thereof, upon which a customary use affirmation is
   30  sought;
   31         2. The detailed, specific, and individual use or uses of
   32  the parcels of property to which a customary use affirmation is
   33  sought; and
   34         3. Each source of evidence that the governmental entity
   35  would rely upon to prove a recreational customary use has been
   36  ancient, reasonable, without interruption, and free from
   37  dispute.
   39  The governmental entity must provide notice of the public
   40  hearing to the owner of each parcel of property subject to the
   41  notice of intent at the address reflected in the county property
   42  appraiser’s records no later than 30 days before the public
   43  meeting. Such notice must be provided by certified mail with
   44  return receipt requested, publication in a newspaper of general
   45  circulation in the area where the parcels of property are
   46  located, and posting on the governmental entity’s website.
   47         (b) Judicial determination.—
   48         1. Within 60 days after the adoption of the notice of
   49  intent at the public hearing, the governmental entity must file
   50  a Complaint for Declaration of Recreational Customary Use with
   51  the circuit court in the county in which the properties subject
   52  to the notice of intent are located. The governmental entity
   53  must provide notice of the filing of the complaint to the owner
   54  of each parcel of property subject to the complaint in the same
   55  manner as is required for the notice of intent in paragraph (a).
   56  The notice must allow the owner receiving the notice to
   57  intervene in the proceeding within 45 days after receiving the
   58  notice. The governmental entity must provide verification of the
   59  service of the notice to the property owners required in this
   60  paragraph to the court so that the court may establish a
   61  schedule for the judicial proceedings.
   62         2. All proceedings under this paragraph shall be de novo.
   63  The court must determine whether the evidence presented
   64  demonstrates that the recreational customary use for the use or
   65  uses identified in the notice of intent have been ancient,
   66  reasonable, without interruption, and free from dispute. There
   67  is no presumption regarding the existence of a recreational
   68  customary use with respect to any parcel of property, and the
   69  governmental entity has the burden of proof to show that a
   70  recreational customary use exists. An owner of a parcel of
   71  property that is subject to the complaint has the right to
   72  intervene as a party defendant in such proceeding.
   73         (4) APPLICABILITY.—This section does not apply to a
   74  governmental entity with an ordinance or rule that was adopted
   75  and in effect on or before January 1, 2016, and does not deprive
   76  a governmental entity from raising customary use as an
   77  affirmative defense in any proceeding challenging an ordinance
   78  or rule adopted before July 1, 2018.
   80  ================= T I T L E  A M E N D M E N T ================
   81  And the title is amended as follows:
   82         Delete lines 30 - 57
   83  and insert:
   84         advance the cause on the calendar; transferring,
   85         renumbering, and amending s. 82.045, F.S.; conforming
   86         provisions to changes made by the act; amending s.
   87         82.04, F.S.; requiring that the court determine the
   88         right of possession and damages; prohibiting the court
   89         from determining question of title unless necessary;
   90         amending s. 82.05, F.S.; requiring that the summons
   91         and complaint be attached to the real property after
   92         two unsuccessful attempts to serve a defendant;
   93         requiring a plaintiff to provide the clerk of the
   94         court with prestamped envelopes and additional copies
   95         of the summons and complaint if the defendant is
   96         served by attaching the summons and complaint to the
   97         real property; requiring the clerk to immediately mail
   98         copies of the summons and complaint and note the fact
   99         of mailing in the docket; specifying that service is
  100         effective on the date of posting or mailing; requiring
  101         that 5 days elapse after the date of service before
  102         the entry of a judgment; amending s. 82.091, F.S.;
  103         providing requirements after a judgment is entered for
  104         the plaintiff or the defendant; amending s. 82.101,
  105         F.S.; adding quiet title to the types of future
  106         actions for which a judgment is not conclusive as to
  107         certain facts; providing that the judgment may be
  108         superseded by a subsequent judgment; creating s.
  109         163.035, F.S.; defining the term “governmental
  110         entity”; prohibiting a governmental entity from
  111         adopting or keeping in effect certain ordinances and
  112         rules based upon customary use; providing an
  113         exception; requiring a governmental entity seeking to
  114         affirm the existence of a recreational customary use
  115         on private property to follow certain procedures;
  116         providing notice requirements for a governmental
  117         entity seeking to affirm such recreational customary
  118         use; requiring the governmental entity to file a
  119         specified complaint with a certain circuit court
  120         within a certain time; providing notice requirements
  121         for the filing of such complaint; specifying that
  122         proceedings resulting from such complaint are de novo;
  123         requiring the court to consider specific factors when
  124         determining whether a recreational customary use
  125         exists; specifying that the governmental entity has
  126         the burden of proof; specifying that an owner of a
  127         parcel of property subject to the complaint has the
  128         right to intervene in the proceeding; providing
  129         applicability;