Florida Senate - 2018 SENATOR AMENDMENT Bill No. CS/HB 631, 1st Eng. Ì2963265Î296326 LEGISLATIVE ACTION Senate . House . . . Floor: 1/AD/2R . Floor: C 03/05/2018 10:44 AM . 03/08/2018 02:05 PM ————————————————————————————————————————————————————————————————— ————————————————————————————————————————————————————————————————— Senator Passidomo moved the following: 1 Senate Amendment (with title amendment) 2 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. 11 (2) ORDINANCES AND RULES RELATING TO CUSTOMARY USE.—A 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. 18 (3) NOTICE OF INTENT TO AFFIRM RECREATION PUBLIC USE ON 19 PRIVATE PROPERTY; JUDICIAL DETERMINATION.—A governmental entity 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. 38 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. 79 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;