ST PETE BEACH – The city has to act quickly if it wants to preserve a legal doctrine that allows cities to argue customary use of beach areas by the public, above the mean high-water line, cannot be restricted or prohibited.
A change in the state law, signed by Gov. Rick Scott, prohibits municipalities from enacting ordinances that protect beach access to private or public beaches. To gain access to a restricted beach area, a city or group would have to get court approval after a lengthy lawsuit battle.
City Attorney Andrew Dickman advised city commissioners to protect its rights the city must enact a “customary use ordinance,” codifying the public’s customary use of beach areas above the mean high-water line, before the new law takes effect on July 1.
The action is designed to reduce the impact of the state’s attempt to make it more difficult for local communities to raise and use a customary-use doctrine protection argument, Dickman explained.
Dickman said he wants to preserve the city’s “ability to be able to raise the defense in court if the city has to.”
The city attorney explained in “Legislature adopted as a last-minute ‘walk-on’ CS/HB 631 that is confusing and perceived by some to preempt local governments from adopting or maintaining ordinances that regulate 'dry' sandy areas of beaches, particularly those areas owned by upland owners, subject to the 'customary use' by the public for recreation and other customary uses.”
The city has to act quickly because “local governments have home rule authority to regulate all lands within its jurisdiction for the public health, safety and welfare, and the statute does not deprive a governmental entity from raising customary use as an affirmative defense in any proceeding challenging an ordinance adopted before July 1, 2018,” he explained.
Mayor Al Johnson said taking action before July 1 could give the city a head-start and if the city does nothing it could get involved in long legal battles.
Some residents have already tried to erect fences to keep the public off their beachfront property, commissioners noted.
Commissioner Ward Friszolowski said people expect to have access and use of the beaches in Florida and this is a good step at this time.
“As of this date, there are no pending proceedings, but there have been situations in the city in reaction to the new statute, and it is impossible to predict what proceedings may happen in the future,” Dickman said. “The statute makes establishment of ‘customary use’ by the public a vaguely defined judicial process, many questions remain about the cost and what happens after the court rules.
“This draft ordinance is somewhat patterned after one pending in Naples and Fernandina Beach. There is reason to believe that this statute may be unconstitutional and could be amended in the future. This ordinance preserves the city’s right to raise customary use as a defense in a legal proceeding,” he advised.
Commissioners advised Dickman and staff they want to pass the Customary Use Ordinance, before the new law takes effect on July 1.
Ordinance bans medical marijuana dispensaries
In other legal action, St. Pete Beach commissioners passed an ordinance, on final reading, to ban medical marijuana dispensaries.
Mayor Al Johnson said he has “no issue with medical marijuana. I have an issue with the state coming in and telling us how to run these things.”
Like in most other cities, legislators in Tallahassee created dissension over home rule more than a debate concerning medical marijuana dispensaries; in a state where more than three-fourths of voters approved medical cannabis use.
Many municipalities object to state legislators telling them if they want to approve medical marijuana dispensaries they have only two choices; if a city wants to permit medical marijuana dispensaries it must regulate them the same as any pharmacy throughout a city. The only other alternative is to ban marijuana dispensaries altogether.
Commissioner Terri Finnerty said this gives St. Pete Beach time to see what happens in other areas or with the state Legislature. Friszolowski said this gives us time to see how it works or doesn’t work in the city.
Commissioners noted, just like with hospital service, residents can find dispensaries just outside the city.
Recreation area gets more parking
In other action, St. Pete Beach’s quaint coastal recreation area, Egan Park at 9101 Blind Pass Road and Captival Circle, is about to get more amenities.
The popular recreation area known for its ball fields, lighted tennis courts, fishing pier and boat ramp was approved for additional features. Commissioners unanimously approved the design by George F. Young to add boat trailer parking spaces and standard vehicle parking at the park.
Additional recreation amenities include a kayak staging and launch area, which allows someone to unload their small canoe, before placing it into the water, to park their vehicle.
Regular boaters will be able to rinse down their watercraft, while other park users enjoy a children’s play area with picnic tables.
City Manager Wayne Saunders told commissioners the concept drawing provides spaces for 13 boat trailers and 48 standard vehicle parking spaces. Parking areas will be grass with shell travel lanes.
Commissioner Rick Falkenstein said the design plans look great; “at least it’s something above ground we can see,” referring to all the roadway drainage improvements the city has recently undertaken.
Finnerty said “it looks great, we’ve waited long enough for that.”
City commissioners suggested, while the city solicits project bids, staff might want to install a parking meter kiosk and have users pay to park at the Egan complex, as is the case in other recreation areas.