Florida Senate - 2018                        COMMITTEE AMENDMENT
       Bill No. SB 804
       
       
       
       
       
       
                                Ì840282!Î840282                         
       
                              LEGISLATIVE ACTION                        
                    Senate             .             House              
                  Comm: RCS            .                                
                  03/01/2018           .                                
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       The Committee on Rules (Passidomo) recommended the following:
       
    1         Senate Amendment (with title amendment)
    2  
    3         Delete lines 343 - 348
    4  and insert:
    5         Section 10. Section 163.035, Florida Statutes, is created
    6  to read:
    7         163.035 Establishment of recreational customary use.—
    8         (1) DEFINITION.—The term “governmental entity” includes an
    9  agency of the state, a regional or a local government created by
   10  the State Constitution or by general or special act, any county
   11  or municipality, or any other entity that independently
   12  exercises governmental authority.
   13         (2) ORDINANCES AND RULES RELATING TO CUSTOMARY USE.—A
   14  governmental entity may not adopt or keep in effect an ordinance
   15  or rule that finds, determines, relies on, or is based upon
   16  customary use of any portion of a beach above the mean high
   17  water line, as defined in s. 177.27, unless such ordinance or
   18  rule is based on a judicial declaration affirming recreational
   19  customary use on such beach.
   20         (3) NOTICE OF INTENT TO AFFIRM RECREATION PUBLIC USE ON
   21  PRIVATE PROPERTY; JUDICIAL DETERMINATION.—A governmental entity
   22  that seeks to affirm the existence of a recreational customary
   23  use on private property must follow the procedures set forth in
   24  this subsection.
   25         (a) Notice.—The governing board of a governmental entity
   26  must, at a public hearing, adopt a formal notice of intent to
   27  affirm the existence of a recreational customary use on private
   28  property. The notice of intent must specifically identify the
   29  following:
   30         1. The specific parcels of property, or the specific
   31  portions thereof, upon which a customary use affirmation is
   32  sought;
   33         2. The detailed, specific, and individual use or uses of
   34  the parcels of property to which a customary use affirmation is
   35  sought; and
   36         3. Each source of evidence that the governmental entity
   37  would rely upon to prove a recreational customary use has been
   38  ancient, reasonable, without interruption, and free from
   39  dispute.
   40  
   41  The governmental entity must provide notice of the public
   42  hearing to the owner of each parcel of property subject to the
   43  notice of intent at the address reflected in the county property
   44  appraiser’s records no later than 30 days before the public
   45  meeting. Such notice must be provided by certified mail with
   46  return receipt requested, publication in a newspaper of general
   47  circulation in the area where the parcels of property are
   48  located, and posting on the governmental entity’s website.
   49         (b) Judicial determination.
   50         1. Within 60 days after the adoption of the notice of
   51  intent at the public hearing, the governmental entity must file
   52  a Complaint for Declaration of Recreational Customary Use with
   53  the circuit court in the county in which the properties subject
   54  to the notice of intent are located. The governmental entity
   55  must provide notice of the filing of the complaint to the owner
   56  of each parcel of property subject to the complaint in the same
   57  manner as is required for the notice of intent in paragraph (a).
   58  The notice must allow the owner receiving the notice to
   59  intervene in the proceeding within 45 days after receiving the
   60  notice. The governmental entity must provide verification of the
   61  service of the notice to the property owners required in this
   62  paragraph to the court so that the court may establish a
   63  schedule for the judicial proceedings.
   64         2. All proceedings under this paragraph shall be de novo.
   65  The court must determine whether the evidence presented
   66  demonstrates that the recreational customary use for the use or
   67  uses identified in the notice of intent have been ancient,
   68  reasonable, without interruption, and free from dispute. There
   69  is no presumption regarding the existence of a recreational
   70  customary use with respect to any parcel of property, and the
   71  governmental entity has the burden of proof to show that a
   72  recreational customary use exists. An owner of a parcel of
   73  property that is subject to the complaint has the right to
   74  intervene as a party defendant in such proceeding.
   75         (4) APPLICABILITY.—This section does not apply to a
   76  governmental entity with an ordinance or rule that was adopted
   77  and in effect on or before January 1, 2016, and does not deprive
   78  a governmental entity from raising customary use as an
   79  affirmative defense in any proceeding challenging an ordinance
   80  or rule adopted before July 1, 2018.
   81  
   82  ================= T I T L E  A M E N D M E N T ================
   83  And the title is amended as follows:
   84         Delete lines 3 - 57
   85  and insert:
   86         amending s. 66.021 F.S.; authorizing a person with a
   87         superior right to possession of real property to
   88         recover possession by ejectment; declaring that
   89         circuit courts have exclusive jurisdiction; providing
   90         that a plaintiff is not required to provide any
   91         presuit notice or demand to a defendant; requiring
   92         that copies of instruments be attached to a complaint
   93         or answer under certain circumstances; requiring a
   94         statement to list certain details; providing for
   95         construction; amending s. 82.01, F.S.; redefining the
   96         terms “unlawful entry” and “forcible entry”; defining
   97         the terms “real property,” “record titleholder,” and
   98         “unlawful detention”; amending s. 82.02, F.S.;
   99         exempting possession of real property under part II of
  100         ch. 83, F.S., and under chs. 513 and 723, F.S.;
  101         amending s. 82.03, F.S.; providing that a person
  102         entitled to possession of real property has a cause of
  103         action to regain possession from another person who
  104         obtained possession of real property by forcible
  105         entry, unlawful entry, or unlawful detainer; providing
  106         that a person entitled to possession is not required
  107         to give a defendant presuit notice; requiring the
  108         court to award plaintiff extra damages if a defendant
  109         acted in a willful and knowingly wrongful manner;
  110         authorizing bifurcation of actions for possession and
  111         damages; requiring that an action be brought by
  112         summary procedure; requiring the court to advance the
  113         cause on the calendar; renumbering and amending s.
  114         82.045, F.S.; conforming provisions to changes made by
  115         the act; amending s. 82.04, F.S.; requiring that the
  116         court determine the right of possession and damages;
  117         prohibiting the court from determining question of
  118         title unless necessary; amending s. 82.05, F.S.;
  119         requiring that the summons and complaint be attached
  120         to the real property after two unsuccessful attempts
  121         to serve a defendant; requiring a plaintiff to provide
  122         the clerk of the court with prestamped envelopes and
  123         additional copies of the summons and complaint if the
  124         defendant is served by attaching the summons and
  125         complaint to the real property; requiring the clerk to
  126         immediately mail copies of the summons and complaint
  127         and note the fact of mailing in the docket; specifying
  128         that service is effective on the date of posting or
  129         mailing; requiring that 5 days elapse from the date of
  130         service before the entry of a judgment; amending s.
  131         82.091, F.S.; providing requirements after a judgment
  132         is entered for the plaintiff or the defendant;
  133         amending s. 82.101, F.S.; adding quiet title to the
  134         types of future actions for which a judgment is not
  135         conclusive as to certain facts; providing that the
  136         judgment may be superseded by a subsequent judgment;
  137         creating s. 163.035, F.S.; defining the term
  138         “governmental entity”; prohibiting a governmental
  139         entity from adopting or keeping in effect certain
  140         ordinances and rules based upon customary use;
  141         providing an exception; requiring a governmental
  142         entity seeking to affirm the existence of a
  143         recreational customary use on private property to
  144         follow certain procedures; providing notice
  145         requirements for a governmental entity seeking to
  146         affirm such recreational customary use; requiring the
  147         governmental entity to file a specified complaint with
  148         a certain circuit court within a certain time;
  149         providing notice requirements for the filing of such
  150         complaint; specifying that proceedings resulting from
  151         such complaint are de novo; requiring the court to
  152         consider specific factors when determining whether a
  153         recreational customary use exists; specifying that the
  154         governmental entity has the burden of proof;
  155         specifying that an owner of a parcel of property
  156         subject to the complaint has the right to intervene in
  157         the proceeding; providing applicability; repealing s.
  158         82.061,