Shawn Buending v. Town of Redington Beach

USCA11 Case: 20-11354 Date Filed: 08/20/2021 Page: 1 of 24

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
________________________

No. 20-11354
________________________

D.C. Docket No. 8:19-cv-01473-JSM-SPF

SHAWN BUENDING,
ROBERT DOHMEN,
THOMAS BROWN,
HARRY S. FIELDS,
WENDY FIELDS,
SHAWN MOORE,
DAGMAR MOORE,

Plaintiffs - Appellees,

versus

TOWN OF REDINGTON BEACH, a Florida municipal corporation,

Defendant - Appellant.

________________________

Appeal from the United States District Court
for the Middle District of Florida
________________________

(August 20, 2021)
 USCA11 Case: 20-11354 Date Filed: 08/20/2021 Page: 2 of 24

Before MARTIN, GRANT, and BRASHER, Circuit Judges.

MARTIN, Circuit Judge:

Florida is famous for its beaches. The Town of Redington Beach, located on

a barrier island in the Gulf of Mexico, is no exception. Shawn Buending, Robert

Dohmen, Thomas Brown, Harry S. Fields, Wendy Fields, Shawn Moore, and

Dagmar Moore (the “Property Owners”) own beachfront property in Redington

Beach. They sued the Town after it passed an ordinance that granted the public

certain access to the dry sand beaches.

This appeal requires us to decide whether the District Court properly granted

summary judgment to the Property Owners on their claims that the ordinance

violated Florida law and constituted an unlawful taking. It also requires us to

decide whether the District Court erred in granting summary judgment to Ms.

Fields, who argued the Town violated her First Amendment rights by removing her

from the Town’s Board of Adjustment after she filed this lawsuit.

After careful consideration, and with the benefit of oral argument, we vacate

and remand the District Court’s grant of summary judgment to the Property

Owners on their claims that the ordinance violated Florida law and constituted an

unlawful taking. We also vacate and remand the District Court’s grant of summary

judgment to Ms. Fields on the First Amendment retaliation claim.

2
 USCA11 Case: 20-11354 Date Filed: 08/20/2021 Page: 3 of 24

I. BACKGROUND

A. Factual Background
The Town of Redington Beach is primarily a single-family residential

community. With a population of about 1,500 people, the Town has a total area of

1.3 square miles, 0.4 square miles of which is land and 0.9 square miles is water.

See U.S. Census Bureau, Redington Beach Town, Florida,

https://www.census.gov; Redington Beach Map and Weather,

http://www.redingtonbeachflorida.org/Redington_Beach_Map_Weather.html (last

visited Aug. 20, 2021). Though the Town does not have tourist facilities or

promote itself as a tourist destination, tourists do come, and stay at the Royal

Orleans (a timeshare hotel) or in vacation rental units. The Town maintains over

20 parking spaces for visitors.

The Property Owners own beachfront property within the Town.

Specifically, Shawn Buending and Robert Dohmen, through real estate agent (and

fellow Plaintiff) Wendy Fields, bought their home in 2018 for $8.35 million Mr.

Buending and Mr. Dohmen divide their time between their homes in Florida and

Wisconsin. Thomas Brown, who also maintains a home in Michigan, purchased

his property in the Town in 2017, with the house still being constructed at the time

of the suit. Wendy and Harry Fields purchased their property in 2004 for $1.7

3
 USCA11 Case: 20-11354 Date Filed: 08/20/2021 Page: 4 of 24

million. Shawn and Dagmar Moore purchased their property in 2017 for $5.2

million and have listed it for sale for $6.5 million.

The Property Owners, of course, made these purchases against the backdrop

of state property law principles. The Florida Constitution gives the public a right

of access along the beaches and shorelines of the state, below the “mean high water

line[]”—the area otherwise known as the wet sand beach. 1 Fla. Const. art. X, § 11.

Thus, using the Florida Constitution as a starting point, the Property Owners’

properties would extend at most to the mean high tide line and encompass the dry

sand beach landward of that line.

In addition to Floridians’ constitutional right to public access, Florida law

also recognizes customary use. Customary use finds its origins in English common

law. William Blackstone described the “unwritten laws of England,” including the

“particular customs, or laws which affect only the inhabitants of particular

districts.” 1 William Blackstone, Commentaries on the Laws of England *74.

This was reflected in court decisions recognizing that, for instance, the inhabitants

of a parish could place a maypole on another’s property and dance around it, see

1
The mean high water line is defined under Florida law as “the intersection of the tidal
plane of mean high water with the shore.” Fla. Stat. § 177.27(15). “Mean high water” is in turn
defined as “the average height of the high waters over a 19-year period. Fla. Stat. § 177.27(14)
For shorter periods of observation, ‘mean high water’ means the average height of the high
waters after corrections are applied to eliminate known variations and to reduce the result to the
equivalent of a mean 19-year value.” Id.

4
 USCA11 Case: 20-11354 Date Filed: 08/20/2021 Page: 5 of 24

Hall v. Nottingham, 1 Ex. D. 1 (Eng. 1875), and that parish inhabitants could play

games and sports on another’s property because of established custom, see Fitch v.

Rawling, 2 H. Bl. 393, 126 Eng. Rep. 614 (C.P. 1795). English common law has

long recognized use of another’s property based on longstanding customs.

The customary use at issue here is the public’s access to the Town’s dry

sand beaches. Florida law allows for localities to recognize the public’s customary

use of their beaches, with Florida courts invoking the English common law

tradition of the doctrine. As the Florida Supreme Court has summarized:

In England, persons of a certain locality or of a certain
class may have, by immemorial custom, a right to make
use of land belonging to an individual. Thus, there may
be a custom for the inhabitants of a certain town to dance
or play games on a particular piece of land belonging to an
individual, or to go thereon in order to get water. So there
may be a custom for fishermen to dry nets on certain land,
or for persons in a certain trade (victualers) to erect booths
upon certain private land during a fair. The custom, to be
valid, must have continued from time immemorial,
without interruption, and as of right; it must be certain as
to the place, and as to the persons; and it must be certain
and reasonable as to the subject matter or rights created.

City of Daytona Beach v. Tona-Rama, Inc., 294 So. 2d 73, 78 (Fla. 1974)

(quotation marks omitted).

Florida courts have for decades recognized the customary use doctrine. But

in 2018, the Florida state legislature enacted new requirements that localities must

meet to assert the customary use of their beaches. See Fla. Stat. § 163.035.

5
 USCA11 Case: 20-11354 Date Filed: 08/20/2021 Page: 6 of 24

Specifically, when it comes to customary use rules that are adopted after a certain

date, § 163.035 requires that government entities seek a judicial declaration

affirming customary recreational use of a beach. Fla. Stat. § 163.035(2). Section

163.035 also contains other provisions regulating the recognition of customary use.

The statute went into effect on July 1, 2018. See Fla. Stat. § 163.035. On

June 6, 2018, just under a month before the statute’s effective date, the Town

enacted the ordinance at issue in this appeal, Ordinance No. 2018-03 (the

“Ordinance”). The Ordinance created a new section of the Redington Beach Town

Code to “recognize[] and protect[]” the public’s “long-standing customary use of

the dry sand areas of all the beaches in the [T]own for recreational purposes.” Ord.

No. 2018-03 § 1. Under the Ordinance, the public could use the dry sand beach in

the Town—including such portions of the Property Owners’ properties—for

recreational use limited to: traversing the beach; sitting on the sand, in a beach

chair, or on a beach towel or blanket; using a beach umbrella that is seven feet or

fewer in diameter; sunbathing; picnicking; fishing; swimming or surfing off the

beach; placement of surfing or fishing equipment for personal use; and building

certain sand creations (as long as those sand creations did not interfere with sea

turtles). Ord. No. 2018-03 § (1)(d). The Ordinance sets a 15-foot “buffer zone”

around private property that spans “seaward from the toe of the dune or from any

privately-owned permanent habitable structure that is located on, or adjacent to, the

6
 USCA11 Case: 20-11354 Date Filed: 08/20/2021 Page: 7 of 24

dry sand areas of the beach.” Ord. No. 2018-03 § (1)(c). The Ordinance also

prohibits the use of tobacco, tents, and the possession of animals on the beach.

Ord. No. 2018-03 § (1)(e). It further states that existing rules governing beach use

remained in effect and violations are punishable as set forth in the Town’s code.

Ord. No. 2018-03 § (1)(f).

B. Procedural History

In 2019, the Property Owners sued the Town, alleging the Ordinance

violated § 163.035, and that the enactment and enforcement of the Ordinance

amounted to a taking under the U.S. and Florida Constitutions.

After the lawsuit was filed, Ms. Fields, one of the Property Owners, was

asked during a Town Commission meeting to resign from her position on the

Board of Adjustment (which reviews requests for variances from the Town’s

zoning code), because she had filed this suit against the Town. Ms. Fields offered

her resignation orally but was instructed by the mayor to provide her resignation in

writing. After consulting with her lawyer, Ms. Fields refused to submit her

resignation in writing. At the Commission’s next meeting, the Commissioners

voted unanimously to remove Ms. Fields from the Board of Adjustment. The

Property Owners then amended the complaint to include Ms. Fields’s claim for

First Amendment retaliation.

7
 USCA11 Case: 20-11354 Date Filed: 08/20/2021 Page: 8 of 24

The parties filed cross motions for summary judgment. The District Court

granted judgment in favor of the Property Owners on all claims. The court held

that the Ordinance was void under § 163.035. It also granted summary judgment

to the Property Owners on the Town’s customary use defense. And in light of its

determination that the public did not have customary use rights over the dry beach

area, the District Court found that the Ordinance constituted both a facial and an

as-applied taking. Finally, the District Court found that the Town’s decision to

remove Ms. Fields from the Board of Adjustment violated the First Amendment.

The Town timely appealed.

II. STANDARD OF REVIEW

We review de novo a grant of summary judgment and review findings of

fact for clear error. Smith v. Haynes & Haynes P.C., 940 F.3d 635, 642 (11th Cir.

2019). A court assessing motions for summary judgment must “resolve all

ambiguities and draw reasonable factual inferences from the evidence in the non-

movant’s favor.” Layton v. DHL Express (USA), Inc., 686 F.3d 1172, 1175 (11th

Cir. 2012). A court “may not weigh conflicting evidence or make credibility

determinations of [its] own. If the record presents disputed issues of fact, the court

may not decide them; rather, [it] must deny the motion and proceed to trial.” Jones

v. UPS Ground Freight, 683 F.3d 1283, 1292 (11th Cir. 2012) (quotation marks

omitted).

8
 USCA11 Case: 20-11354 Date Filed: 08/20/2021 Page: 9 of 24

III. DISCUSSION

A. The District Court erred in declaring the Ordinance void under Florida
Statute § 163.035.

We first address whether the Ordinance violates § 163.035. When, as here,

the statute is unambiguous, we look to the plain language of the text. Daniels v.

Fla. Dep’t of Health, 898 So. 2d 61, 64 (Fla. 2005); see also Robbins v. Garrison

Prop. & Cas. Ins. Co., 809 F.3d 583, 586 (11th Cir. 2015).

In finding that the Ordinance violated § 163.035, the District Court looked to

subsection 2, which states:

(2) Ordinances and rules relating to customary use.--A
governmental entity may not adopt or keep in effect an
ordinance or rule that finds, determines, relies on, or is
based upon customary use of any portion of a beach above
the mean high-water line, as defined in s. 177.27, unless
such ordinance or rule is based on a judicial declaration
affirming recreational customary use on such beach.

Fla. Stat. § 163.035(2) (emphases added).

The District Court found that the Ordinance violated § 163.035 because it

reasoned that the Town violated the “kept in effect” portion of the statute. The

court found that the Town kept the Ordinance in effect after July 1, 2018, when

§ 163.035 went into effect, and did so without seeking a judicial declaration

affirming customary use. The Town rejects this reading of § 163.035, arguing that

the Property Owners’ interpretation of the statute conflicts with § 163.035(4),

9
 USCA11 Case: 20-11354 Date Filed: 08/20/2021 Page: 10 of 24

which allows for ordinances adopted before July 1, 2018 to be kept in effect and

defended in court. Section 163.035(4) reads:

(4) Applicability.--This section does not apply to a
governmental entity with an ordinance or rule that was
adopted and in effect on or before January 1, 2016, and
does not deprive a governmental entity from raising
customary use as an affirmative defense in any proceeding
challenging an ordinance or rule adopted before July 1,
2018.

Fla. Stat. § 163.035(4) (emphasis added).
The Property Owners in turn respond that § 163.035(4) cannot serve as a

valid basis for the Town to keep the Ordinance in effect because, they say, the

Florida legislature intended for § 163.035(4) to apply only to localities’ defense of

takings suits. Upon our review, we conclude that this argument fails. For one, the

Property Owners provide mere assertions of legislative intent and have not

provided any evidence in support of its claims. But more to the point, the Property

Owners’ view that § 163.035(4) is limited to suits against government takings

contravenes a plain reading of the statutory text. Section 163.035(4) states that a

locality may raise an affirmative defense of customary use “in any proceeding.”

Fla. Stat. § 163.035(4) (emphasis added). We understand “any proceeding” to

mean any proceeding, including this one brought by the Property Owners here.

We therefore decline to adopt the Property Owners’ reading. See Daniels, 898 So.

2d at 64.

10
 USCA11 Case: 20-11354 Date Filed: 08/20/2021 Page: 11 of 24

Instead, we conclude that the Town was entitled to invoke customary use as

an affirmative defense under § 163.035(4). Again, § 163.035(4) states that the

statute “does not deprive a governmental entity from raising customary use as an

affirmative defense in any proceeding challenging an ordinance or rule adopted

before July 1, 2018.” Fla. Stat. § 163.035(4). The Ordinance was passed on June

6, 2018. See Ord. No. 2018-03. Thus, a plain reading of § 163.035(4) supports the

conclusion that the Town was permitted to keep the Ordinance in effect after July

1, 2018 and raise an affirmative defense of customary use in defending against the

Property Owners’ lawsuit. Daniels, 898 So. 2d at 64.

We therefore vacate the District Court’s ruling that the Ordinance is void

under § 163.035 because it was kept in effect after July 1, 2018. We next turn to

the District Court’s finding that the Town failed to provide sufficient evidence to

establish the asserted customary use.

B. The District Court erred granting summary judgment to the Property
Owners on the Town’s customary use defense.
The District Court found that the Town failed to prove its affirmative

defense of customary use as a matter of law, granting summary judgment to the

Property Owners on this issue. But because we conclude the District Court

impermissibly weighed the evidence at the summary judgment stage, see Jones,

683 F.3d at 1292, we vacate this ruling.

11
 USCA11 Case: 20-11354 Date Filed: 08/20/2021 Page: 12 of 24

To resolve whether the Town has shown customary use over the dry sand

beach in dispute, we look to Florida law. See Shapiro v. Associated Int’l Ins. Co.,

899 F.2d 1116, 1118 (11th Cir. 1990) (federal courts are bound to follow the

decisions of the Florida Supreme Court on issues of Florida state law).

In addressing property disputes, Florida courts have long recognized the

unique nature of its beaches. In White v. Hughes, 190 So. 446 (Fla. 1939), the

Florida Supreme Court wrote:

There is probably no custom more universal, more natural
or more ancient, on the sea-coasts, not only of the United
States, but of the world, than that of bathing in the salt
waters of the ocean and the enjoyment of the wholesome
recreation incident thereto. The lure of the ocean is
universal; to battle with its refreshing breakers a delight.
Many are they who have felt the lifegiving touch of its
healing waters and its clear dust-free air. Appearing
constantly to change, it remains ever essentially the same.
This primeval quality appeals to us. ‘Changeless save to
the wild waves play, time writes no wrinkles on thine
azure brow; such as creation’s dawn beheld, thou rollest
now.’ The attraction of the ocean for mankind is as
enduring as its own changelessness. The people of
Florida––a State blessed with probably the finest bathing
beaches in the world––are no exception to the rule. Skill
in the art of swimming is common amongst us. We love
the oceans which surround our State. We, and our visitors
too, enjoy bathing in their refreshing waters. The constant
enjoyment of this privilege of thus using the ocean and its
fore-shore for ages without dispute should prove sufficient
to establish it as an American common law right.

Id. at 448–49.

12
 USCA11 Case: 20-11354 Date Filed: 08/20/2021 Page: 13 of 24

The Florida Supreme Court first articulated the customary use doctrine in

1974. See Tona-Rama, 294 So. 2d at 78. In Tona-Rama, the Florida Supreme

Court explained that the public could continue using the dry sand area adjoining a

tourist attraction if such recreational use were “ancient, reasonable, without

interruption and free from dispute.” Id. In describing the rationale underlying

customary use, the Florida Supreme Court wrote that

[n]o part of Florida is more exclusively hers, nor more
properly utilized by her people than her beaches. And the
right of the public of access to, and enjoyment of, Florida's
oceans and beaches has long been recognized by this
Court. . . . The beaches of Florida are of such a character
as to use and potential development as to require separate
consideration from other lands with respect to the
elements and consequences of title. The sandy portion of
the beaches are of no use for farming, grazing, timber
production, or residency—the traditional uses of land—
but has served as a thoroughfare and haven for fishermen
and bathers, as well as a place of recreation for the public.
The interest and rights of the public to the full use of the
beaches should be protected.

Id. at 75, 77.
The Florida courts of appeals have also written on the doctrine. See

Blanchard v. State Farm Mut. Auto. Ins. Co., 903 F.2d 1398, 1399 (11th Cir. 1990)

(in the absence of a ruling by the Florida Supreme Court, decisions of the Florida

District Courts of Appeal are controlling). In Reynolds v. County of Volusia, 659

So. 2d 1186 (Fla. 5th DCA 1995), the Fifth District Court of Appeal noted that

“the doctrine of customary usage of the sandy beach areas of this state offer[ed] a

13
 USCA11 Case: 20-11354 Date Filed: 08/20/2021 Page: 14 of 24

potential . . . ground” to affirm the ruling that there was no taking in the case. Id.

at 1190–91. The Fifth District Court of Appeal reiterated the requirements of the

customary use doctrine, explaining that it “requires the courts to ascertain in each

case the degree of customary and ancient use the beach has been subjected to and,

in addition, to balance whether the proposed use of the land by the fee owners will

interfere with such use enjoyed by the public in the past.” Id. at 1190. But

because it determined the title at issue did not include the dry sand beach, the court

did not have to reach the issue of whether customary use existed in the case. Id. at

1190–91; see also id. at 1187–88.

The Fifth District Court of Appeal again discussed customary use in

Trepanier v. County of Volusia, 965 So. 2d 276 (Fla. 5th DCA 2007). In this case,

the Fifth District Court of Appeal instructed that to establish a customary right the

local government need not prove customary use of the property owners’ specific

parcels of property. Id. at 290. Instead, the court read the Florida Supreme Court’s

decision in Tona-Rama to “require proof that the general area of the beach where

[the private] property is located has customarily been put to such use.” Id.

(emphasis added). The court then found that issues of fact precluded a

determination on customary use and required remand. Id. at 290–91.

Finally, we note that the Florida legislature has also recognized the public’s

reasonable access to beaches. See Fla. Stat. § 187.201(8)(b)(2) (stating as part of

14
 USCA11 Case: 20-11354 Date Filed: 08/20/2021 Page: 15 of 24

the State Comprehensive Plan that it is a state goal to “[e]nsure the public’s right to

reasonable access to beaches”). In sum, Florida state law confirms that the

public’s right to access to the dry sand beaches can be acquired by custom, which

is “a source of law that emanates from long-term, open, obvious and widely-

accepted and widely-exercised practice.” Trepanier, 965 So. 2d at 289.

With these principles in mind, we consider whether, on this record, the

District Court properly granted summary judgment to the Property Owners on the

issue of customary use. We don’t believe it did. Based on our review of the

evidence, we conclude that genuine disputes of material fact preclude summary

judgment.

Recall that the Town has a total area of only 1.3 square miles, 0.4 square

miles of which is land and 0.9 square miles is water.2 The question of customary

use is a localized inquiry, in this case implicating fairly limited stretches of

beachfront. The Town may establish customary use by showing that the “general

area” of the beaches has been subject to customary use that is “‘ancient,

reasonable, without interruption and free from dispute.’” Trepanier, 965 So. 2d at

290–91 (quoting Tona-Rama, 294 So. 2d at 78).

2
See Redington Beach Map and Weather,
http://www.redingtonbeachflorida.org/Redington_Beach_Map_Weather.html (last visited Aug.
20, 2021).
15
 USCA11 Case: 20-11354 Date Filed: 08/20/2021 Page: 16 of 24

The Town provided a range of evidence supporting its customary use

defense. Charles Redington, who founded the Town in 1935, see Ord. No. 2018-

03, donated beach access points, which have existed since the Town’s inception.

These access points, in the form of boardwalks, are repaired and maintained by the

Town. The Town code, in turn, defines a “beach access point” as “[a]ny access

used by the general public or private property owners for the purpose of gaining

access to the beach.” Town Code § 4-9(b) (emphasis added).

Of course, the beach access points could be consistent with merely the use of

the wet sand, but additional evidence supports the Town’s assertion of customary

use of the dry sand beach as well. For one, the Town has traditionally expended

public funds to rake the beach. And the Town holds events every year on the dry

sand beach that are not at the Town park. These include a “hotdog cookout” held

on the Fourth of July and one or two beach cleanups a year sponsored by the

Redington Beach Property Owners’ Association.

As further indication that the Town was designed to accommodate visitors,

who may not want to come if they could not access the beaches, we note that

visitors may stay at vacation rental units or a hotel in the Town. The record

includes one example of a mansion with eight bedrooms, rented out at a rate of

$25,000 a week, which saw as many as “40 to 50” visitors a week. The Town

16
 USCA11 Case: 20-11354 Date Filed: 08/20/2021 Page: 17 of 24

maintains over 20 parking spaces for visitors. All of this evidence suggests there

are customs, housing, and parking supporting visitors’ use of the beaches.

Beyond that, the Town provided testimonial and photographic evidence

supporting the longstanding perception that the Town’s beaches are available for

public use. As one longtime resident attested, “It’s always been a public beach.”

The mayor, who moved to the Town as a child in 1955, testified that people “just

felt like the beach was there for us to enjoy and use.” A Town Commissioner

attested to raising his children in the Town and, throughout those years, accessing

the dry sand beach through the public access points. He testified that at no point

was he told that he and his family could not be on the dry sand beach. The Town’s

corporate representative also testified that she would run on the dry sand. The

representative testified that she saw others on the dry sand areas outside of the

bounds of the city park. As one example, she said she saw fisherman waiting on

the dry sand beach while their poles were mounted in the wet sand. Another Town

commissioner also testified that his family would routinely use the dry sand areas

behind the homes and that he had “been doing this for years.” Several

commissioners identified some of the pictures of people gathering on the dry sandy

areas of the beach behind a resident’s home.

Even some of the testimony by the plaintiffs supports customary use. Two

plaintiffs attested to observing people using the dry sandy areas behind their own

17
 USCA11 Case: 20-11354 Date Filed: 08/20/2021 Page: 18 of 24

houses, including at the time they purchased their homes. Thomas Brown said that

in 2017 when he toured the house that he bought, “the residents were out [on the

dry beach] for sure” “picknick[ing] or . . . on beach chairs” or the like. He also

testified that, over the next year, “[o]n occasion there were people on the beach”

behind his house and that he “assumed they were residents” of the town. He

admits he had “seen people out there,” referring to the dry sand beach behind his

house, before the Ordinance was enacted. Wendy Fields testified that her real

estate agent told her before she and her husband bought the house that they “could

not stop people from walking across[]” the dry sand beach behind the house.

As such, the Town provided evidence suggesting that residents and

nonresidents alike use the dry sand beaches, including residents who do not own

beachfront property. This overview of the evidence is not exhaustive.

Nevertheless, it reflects competent evidence put forward by the Town in support of

its customary use defense.

We think the District Court made two errors in granting summary judgment

to the Property Owners. First, it discounted the evidence supporting customary

use. The District Court dismissed the Town’s evidence as “anecdot[al],” “too

weak,” “not limited to Property Owners’ properties,” and “too imprecise to

establish recreational customary use of the particular area of the beach at issue.” In

so doing, however, the District Court impermissibly weighed a conflicting record,

18
 USCA11 Case: 20-11354 Date Filed: 08/20/2021 Page: 19 of 24

see Jones, 683 F.3d at 1292, and disregarded the Florida courts’ rulings on the

topic of customary use. Those rulings say that customary use “require[s] proof that

the general area of the beach where [the private] property is located has

customarily been put to such use,” and that Florida courts do not “suggest that the

[local government] must prove [customary use of property owners’] specific

parcels of property.” Trepanier, 965 So. 2d at 290 (emphasis added).

Second, the District Court appeared to discount the uses of the beach that

were not adverse to the owner’s use. But the Florida doctrine of customary use

does not impose an adversity requirement, and the doctrine applies even where the

owner has given actual or implicit permission. See Tona-Rama, Inc., 294 So. 2d at

76, 78 (contrasting prescriptive easement, which has an adversity requirement,

with customary use, which does not); see also 1 Blackstone, supra, at *77

(explaining that customary use is “peaceable, and acquiesced in”). For instance,

the District Court dismissed evidence showing public use simply because the

beachgoers could have been “invitees of the property owners.” But pictures of

large town gatherings on the dry sandy areas of the beach are not irrelevant to

determining customary use just because a property owner may have attended the

gathering or because the attendees might have had permission to be there.

On this record, we conclude that issues of material fact remain as to whether

the public’s use of the Town’s dry sand beaches is “ancient, reasonable, without

19
 USCA11 Case: 20-11354 Date Filed: 08/20/2021 Page: 20 of 24

interruption and free from dispute.” Tona-Rama, 294 So. 2d at 78. We stress that

the Town of Redington Beach is a planned community that appeared to intend to

provide beach access to its residents and covers a very limited stretch of

beachfront. This appeal concerns a limited amount of beachfront property in a

small town. Given this context, we conclude the evidence here was sufficient to

create genuine disputes of material fact on customary use.

We decline to decide whether the Town has established customary use.

Instead, we vacate the District Court’s grant of summary judgment to the Property

Owners on the Town’s customary use defense and remand for further

determination of the issue.

C. The District Court erred in finding a facial and an as-applied taking.
Next is the Property Owner’s claim that the Ordinance constituted an

unlawful taking in violation of the Fifth Amendment of the U.S. Constitution and

Article X of the Florida Constitution. U.S. Const. amend. V; Fla. Const. Article X,

§ 6(a); see also St. Johns River Water Mgmt. Dist. v. Koontz, 77 So. 3d 1220, 1226

(Fla. 2011) (the takings clause of the Fifth Amendment and the takings clause of

the Florida Constitution are interpreted coextensively), rev’d on other grounds, 570

U.S. 595, 133 S. Ct. 2586 (2013).

The District Court found that because the Town’s customary use defense

failed, the Town had necessarily effected an unlawful taking of property. We

20
 USCA11 Case: 20-11354 Date Filed: 08/20/2021 Page: 21 of 24

vacate the District Court’s grant of summary judgment to the Property Owners on

the federal and state takings claims, because the Town may establish its customary

use defense on remand.

D. The District Court erred in finding that the Town violated Ms. Fields’s
First Amendment rights.

Finally, we address Ms. Fields’s First Amendment retaliation claim. The

District Court granted summary judgment to Ms. Fields, but we conclude genuine

disputes of material fact remain about whether Fields resigned, and thus whether

she suffered an adverse employment action in the first place.

In evaluating claims that a public employee suffered an adverse employment

action based on expressive conduct or speech, courts must “balance . . . the

interests of the [employee], as a citizen, in commenting upon matters of public

concern and the interest of the [government], as an employer, in promoting the

efficiency of the public services it performs through its employees.” Pickering v.

Bd. of Educ. of Twp. High Sch. Dist. 205, 391 U.S. 563, 568, 88 S. Ct. 1731,

1734–35 (1968); see Moss v. City of Pembroke Pines, 782 F.3d 613, 617–18 (11th

Cir. 2015) (setting forth the Pickering balancing test). But whether an employee

suffered an “adverse employment action” is a “preliminary matter” that must be

resolved first. Cook v. Gwinnett Cnty. Sch. Dist., 414 F.3d 1313, 1318 (11th Cir.

2005).

21
 USCA11 Case: 20-11354 Date Filed: 08/20/2021 Page: 22 of 24

Here, the District Court granted summary judgment to Ms. Fields after

finding that she had not resigned, but rather was terminated from the Board of

Adjustment. The court noted that the Town took a “conflicting position on this

issue,” appearing to argue in one set of summary judgment briefing that Ms. Fields

“voluntarily resigned,” but in its response to Fields’s summary judgment motion

failed to dispute her characterization that she was “removed from the Board [of

Adjustment].” The court then found that it was “undisputed that Fields refused to

offer her resignation in writing and the Commission then unanimously voted to

remove Fields from the Board.” From this, the District Court decided that the

record “does not support the Town’s argument . . . that Fields voluntarily resigned

from the Board.”

However, the District Court did not address whether Ms. Fields may have

resigned orally during the Town Commission meeting. The Town argues she

resigned orally at the meeting because she said she would be “more than happy to”

resign if asked. The Commissioners stated they did want Ms. Fields to resign, and

she responded that she “accepted.” The mayor then requested that the resignation

be submitted “in writing,” which, of course, it was not. The record contains further

conflicting evidence on whether Ms. Fields resigned. For her part, Ms. Fields

22
 USCA11 Case: 20-11354 Date Filed: 08/20/2021 Page: 23 of 24

testified that she did not believe she resigned at the meeting. 3 Although the

committee meeting minutes state Ms. Fields volunteered to resign and the

Commissioners accepted her resignation, Fields disputed the accuracy of these

notes, testifying she “saw what the meeting notes said” and believed it was “very

different than what [her] memory was.” Given this conflicting evidence on

whether Ms. Fields actually resigned at the Town Commission meeting, summary

judgment on this claim was improper.

Because a resolution of whether Ms. Fields resigned is a precursor to

evaluating her claim of First Amendment retaliation, we must vacate the grant of

summary judgment to Fields and remand the claim for further proceedings.

3
At her deposition, Ms. Fields testified as follows:

Q: So you said that you would resign. They asked for formal
resignation in writing, but your recollection is you did not resign at
that meeting?

A: I said “I would resign” is the exact words.

Q: Okay.

A: But after thinking there were complaints against me. If there
were complaints against me and I was doing a poor job, I would
resign. But there were no complaints against me. They had no
documentation. If they had, I would have forwarded my resignation.
. . . So I chose not to resign because I liked what I was doing.

R. Doc. 51-1 at 41–42.
23
 USCA11 Case: 20-11354 Date Filed: 08/20/2021 Page: 24 of 24

IV

We vacate the judgment of the District Court and remand the case for further

proceedings consistent with this opinion.

VACATED and REMANDED.

24