Florida Senate - 2019 SB 54
By Senator Rouson
1 A bill to be entitled
2 An act relating to possession of real property;
3 repealing s. 163.035, F.S., relating to a governmental
4 entity’s establishment of recreational customary use
5 on a portion of a beach above the mean high-water line
6 on private property; providing an effective date.
8 Be It Enacted by the Legislature of the State of Florida:
10 Section 1. Section 163.035, Florida Statutes, is amended to
163.035 Establishment of recreational customary use.—
13 (1) DEFINITION.—The term “governmental entity” includes an
14 agency of the state, a regional or a local government created by
15 the State Constitution or by general or special act, any county
16 or municipality, or any other entity that independently
17 exercises governmental authority.
18 (2) ORDINANCES AND RULES RELATING TO CUSTOMARY USE.—A
19 governmental entity may not adopt or keep in effect an ordinance
20 or rule that finds, determines, relies on, or is based upon
21 customary use of any portion of a beach above the mean high
22 water line, as defined in s. 177.27, unless such ordinance or
23 rule is based on a judicial declaration affirming recreational
24 customary use on such beach.
25 (3) NOTICE OF INTENT TO AFFIRM RECREATION PUBLIC USE ON
26 PRIVATE PROPERTY; JUDICIAL DETERMINATION.—A governmental entity
27 that seeks to affirm the existence of a recreational customary
28 use on private property must follow the procedures set forth in
29 this subsection.
30 (a) Notice. —The governing board of a governmental entity
31 must, at a public hearing, adopt a formal notice of intent to
32 affirm the existence of a recreational customary use on private
33 property. The notice of intent must specifically identify the
35 1. The specific parcels of property, or the specific
36 portions thereof, upon which a customary use affirmation is
38 2. The detailed, specific, and individual use or uses of
39 the parcels of property to which a customary use affirmation is
40 sought; and
41 3. Each source of evidence that the governmental entity
42 would rely upon to prove a recreational customary use has been
43 ancient, reasonable, without interruption, and free from
46 The governmental entity must provide notice of the public
47 hearing to the owner of each parcel of property subject to the
48 notice of intent at the address reflected in the county property
49 appraiser’s records no later than 30 days before the public
50 meeting. Such notice must be provided by certified mail with
51 return receipt requested, publication in a newspaper of general
52 circulation in the area where the parcels of property are
53 located, and posting on the governmental entity’s website.
54 (b) Judicial determination. —
55 1. Within 60 days after the adoption of the notice of
56 intent at the public hearing, the governmental entity must file
57 a Complaint for Declaration of Recreational Customary Use with
58 the circuit court in the county in which the properties subject
59 to the notice of intent are located. The governmental entity
60 must provide notice of the filing of the complaint to the owner
61 of each parcel of property subject to the complaint in the same
62 manner as is required for the notice of intent in paragraph (a).
63 The notice must allow the owner receiving the notice to
64 intervene in the proceeding within 45 days after receiving the
65 notice. The governmental entity must provide verification of the
66 service of the notice to the property owners required in this
67 paragraph to the court so that the court may establish a
68 schedule for the judicial proceedings.
69 2. All proceedings under this paragraph shall be de novo.
70 The court must determine whether the evidence presented
71 demonstrates that the recreational customary use for the use or
72 uses identified in the notice of intent have been ancient,
73 reasonable, without interruption, and free from dispute. There
74 is no presumption regarding the existence of a recreational
75 customary use with respect to any parcel of property, and the
76 governmental entity has the burden of proof to show that a
77 recreational customary use exists. An owner of a parcel of
78 property that is subject to the complaint has the right to
79 intervene as a party defendant in such proceeding.
80 (4) APPLICABILITY.—This section does not apply to a
81 governmental entity with an ordinance or rule that was adopted
82 and in effect on or before January 1, 2016, and does not deprive
83 a governmental entity from raising customary use as an
84 affirmative defense in any proceeding challenging an ordinance
85 or rule adopted before July 1, 2018.
86 Section 2. This act shall take effect July 1, 2019.