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Tuesday, April 14, 2020

Judge rejects private beach owners' lawsuit to continue using their 'backyards' during pandemic

Posted By on Tue, Apr 14, 2020 at 10:44 AM

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In a bitter legal dispute between local officials and oceanfront property owners, a federal judge on Monday refused to block a Walton County ordinance that bans people from using public and private beaches amid the COVID-19 pandemic.

Plaintiffs in the lawsuit, including former Arkansas Gov. Mike Huckabee, argued that the ordinance is unconstitutional on a series of grounds, including that it violates privacy and due-process rights.



The property owners asked U.S. District Judge Roger Vinson to prevent Walton County Sheriff Michael Adkinson from enforcing the ordinance and to issue a preliminary injunction blocking the local law.

But in a telephone hearing Monday, Vinson said the plaintiffs failed to show that they would be harmed if the ordinance remains in effect and would likely not succeed on the merits of the lawsuit.

“Certainly, this is a national emergency. It’s a state emergency. I think without question the county has authority to take whatever measures they think are necessary to meet that need, as long as it’s narrowly tailored to meet that interest,” Vinson said.

Any potential harm to the plaintiffs is “temporary,” Vinson said, pointing out that the countywide ban on beach use expires on April 30, but is likely to be extended.

“It’s a harm that’s relatively minimal compared to the harms that might result if you have exposure to a communicable virus,” he added.

Much of Monday’s two-hour hearing focused on what constitutes the “beach,” which the ordinance defines as “the soft sandy portion of land lying seaward of the seawall or the line of permanent dune vegetation.”

But most of Walton County’s 26 miles of beaches along the Gulf of Mexico lack seawalls, while some oceanfront properties lack vegetation covering dunes, as shown in photos submitted by the plaintiffs.

Property owners complained in the lawsuit, filed this month, that Adkinson’s deputies, county code-enforcement officers and local fire department workers have bullied them as they tried to use their “backyards.” The case focuses on how the ordinance affects the rights of oceanfront property owners, rather than issues related to the general public.
Local officials maintain they are trying to curb widespread transmission of COVID-19, the highly contagious respiratory disease caused by a novel coronavirus.

“It’s hard to imagine a more important public interest than attempting to prevent the spread of this rampant, unseen pathogen, which can be transmitted … by both symptomatic and asymptomatic persons, and which has led to the deaths of tens of thousands of people and many, many more infections,” attorney Bill Warner, who represents the county, told Vinson during Monday’s hearing.

The county’s lawyers argued in a brief filed Friday that Gov. Ron DeSantis gave them the authority to close beaches. In an April 1 executive order, the governor directed “parties accessing public beaches” in Florida to follow health officials’ social distancing recommendations and “support beach closures at the discretion of local officials.”

The “safer at home” order also left room for people to take part in “essential activities,” including “participating in recreational activities … such as walking, biking, hiking, fishing, hunting, running, or swimming.”

Kent Safriet, one of the plaintiffs’ attorneys, said the Walton County ordinance “increases the risk to the public” of contracting COVID-19 “by forcing these landowners to public locations to engage in the very activities” authorized in DeSantis’ order.

“Your honor, these people cannot swim or fish in their own backyard,” Safriet told the judge Monday.

Safriet said Vinson should follow a Saturday ruling by a Kentucky federal judge, who issued a temporary restraining order against Louisville Mayor Greg Fisher and city officials, prohibiting them from attempting to stop drive-in church services on Easter.

The Walton County ordinance, which carries a $500-per-day fine and up to 60 days in jail, is an “unreasonable seizure” of the property owners’ land and violates their “constitutionally guaranteed right to be let alone from government intrusion,” Safriet argued. Under Florida law, privately owned beach property generally extends to a point known as the mean high-water line.

“They’re being kicked off and threatened with arrest for being on that portion of their dry beach,” he said. “The county has done nothing to establish that this action helps prevent the spread of COVID-19.”

Safriet also accused county officials of trespassing on the oceanfront landowners’ beaches, “barking directions to private property owners.”

“They all say, if you don’t follow what I say, I’m going to call the sheriff,” Safriet said. “The homeowners don’t want the sheriff coming up to their patio and saying you can’t sit on your patio. I mean, that’s pretty basic.”

“I don’t recall anybody suggesting that the county has attempted to limit their ability to sit on their patio or their deck or whatever,” Warner said.

Adkinson’s lawyer, Gwen Adkins, told Vinson the ability to “limit the spread (of the disease) as much as possible … is what’s at stake here and what is necessary,” adding that “the public interest far outweighs any incidental harm to the plaintiffs, in terms of them not being able to use a portion of the property.”

The issue of beach closures has sparked a furious debate as the coronavirus has spread throughout the state.

DeSantis balked at ordering a statewide closure, but on March 20 agreed to shut down beaches in Palm Beach and Broward counties to combat large crowds of college students congregating. Local officials throughout Florida have imposed beach closures and other stringent measures, such as curfews, aimed at curbing the virus’ spread.

A Leon County circuit judge last week dismissed a lawsuit, filed by Walton County lawyer Daniel Uhlfelder, seeking to force DeSantis to make beaches throughout the state off-limits. Uhlfelder has appealed the ruling.

Walton County commissioners voted April 2 to shut the beach. Although Vinson sided with the county, the judge said he was concerned “about the way this ordinance has been interpreted and applied.”

Vinson said he construed the ordinance to apply to “the sandy area between the water and wherever the (property) improvements are.”

“I’m going to just say that that cannot be any closer than a distance – and I’m going to just pick a number – say, 10 yards to any permanent improvements, whatever that might be, of the private residence,” he said. “The sheriff needs to not try to enforce it any closer than that.”

Vinson said his decision means “anything that’s perceived as part of the beach, by reasonable people.”

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