DISTRICT COURT OF APPEAL OF FLORIDA
SECOND DISTRICT
DIRTY DUCK 16004 LLC; DIRTY DUCK 16008 LLC;
SALLY S. DOWDLE, as trustee of the James C. Dowdle
Non-Exempt Marital Trust #2; GARY W. HARROD, as trustee
of the Gary W. Harrod Qualified Personal Residence Trust dated October
16, 2007; TERRENCE J. McCARTHY; and
ELIZABETH SCHMIDT,
Appellants,
v.
TOWN OF REDINGTON BEACH,
a Florida municipal corporation,
Appellee.
No. 2D23-251
November 8, 2023
Appeal pursuant to Fla. R. App. P. 9.130 from the Circuit Court for
Pinellas County; Thomas M. Ramsberger, Judge.
Kyle B. Teal, Hala Sandridge, Chance Lyman, Christian C. Kohlsaat, and
Jesse Stolow of Buchanan Ingersoll & Rooney PC, Tampa, for Appellants.
Joseph P. Kenny of Weber, Crabb & Wein, P.A., St. Petersburg, Amicus
Curiae for Pamela Greacen and Arthur L. Buser, Jr.
Robert Michael Eschenfelder of Trask Daigneault, LLP, Clearwater, for
Appellee.
SILBERMAN, Judge.
The Town of Redington Beach enacted an ordinance premised on
the doctrine of customary use that allows the public to use the dry sand
beaches of privately owned beachfront properties for specified activities.
As a result, Dirty Duck 16004 LLC; Dirty Duck 16008 LLC; Sally S.
Dowdle, as Trustee of the James C. Dowdle Non-Exempt Marital Trust
#2; Gary W. Harrod, as Trustee of the Gary W. Harrod Qualified Personal
Residence Trust dated October 16th, 2007; Terence J. McCarthy; and
Elizabeth Schmidt (the Owners) filed suit against the Town and alleged
that the Town's customary use ordinance violates section 163.035,
Florida Statutes (2021). In its operative complaint, the Owners alleged
claims for (I) violations of procedural due process; (II) declaratory
judgment; (III) injunctive relief; (IV) inverse condemnation (facial taking);
(V) inverse condemnation (as applied taking, in the alternative); (VI)
violation of separation of powers doctrine and home rule doctrine; and
(VII) quiet title. The Owners now appeal the trial court's nonfinal Order
Granting Defendant's Dispositive Motion for Judgment on the Pleadings
as to Counts I-IV, VI and VII of the Plaintiffs' Amended Complaint (the
Order). Count V for inverse condemnation as applied remains pending.
The Owners specifically challenge the denial of injunctive relief based on
the trial court's alleged misinterpretation of section 163.035.1 See Fla. R.
App. P. 9.130(a)(3)(B) (providing for review of nonfinal orders that deny
injunctions).
Because the trial court did not misinterpret section 163.035 and
because the Owners have not otherwise established reversible error, we
1 Two other beachfront property owners filed an amicus curiae brief
in support of the Owners' position.
2
affirm the Order to the extent that it denies injunctive relief. We do not
comment on the other issues raised on appeal, except to note that the
Order incorrectly states without citation to authority that "an injunction
is a form of relief, not a standalone cause of action." Although a claim
for only temporary injunctive relief is not a standalone cause of action, a
claim for temporary and permanent injunctive relief "satisfie[s] the
requirement of an underlying cause of action." McElroy v. Fla. Power &
Light Co., 352 So. 3d 7, 8 (Fla. 4th DCA 2022); cf. Skyway Trap & Skeet
Club, Inc. v. Sw. Fla. Water Mgmt. Dist., 854 So. 2d 676, 681 (Fla. 2d DCA
2003) (recognizing "the trial court's apparent lack of authority to issue a
temporary injunction granting relief which is not predicated on a
complaint seeking permanent relief"). Because count V for inverse
condemnation as applied remains pending, we remand for further
proceedings on that count, with the Town permitted to raise the
customary use doctrine as an affirmative defense pursuant to section
163.035(4).
BACKGROUND
The customary use doctrine dates back to the English common law
and was recognized in Florida in City of Daytona Beach v. Tona-Rama,
Inc., 294 So. 2d 73, 76-78 (Fla. 1974). It has recently been reiterated as
follows:
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
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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.
Buending v. Town of Redington Beach, 10 F.4th 1125, 1128-29 (11th Cir.
2021) (quoting Tona-Rama, 294 So. 2d at 78). As to Florida's beaches,
our supreme court stated:
We recognize the propriety of protecting the public interest in,
and right to utilization of, the beaches and oceans of the State
of Florida. No 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.
Tona-Rama, 294 So. 2d at 75. Thus, "[i]f the recreational use of the
sandy area adjacent to mean high tide has been ancient, reasonable,
without interruption and free from dispute, such use, as a matter of
custom, should not be interfered with by the owner." Id. at 78.2
Effective July 1, 2018, the legislature enacted section 163.035,
Florida Statutes, which governs the customary use doctrine. See ch.
2018-94, §§ 10, 14, Laws of Fla. Pertinent provisions of section 163.035
state the following:
2 In Tona-Roma, a case involving whether the public had acquired a
prescriptive easement on a private beach upon which the owner built an
observation tower, the Florida Supreme Court determined that there was
no adverse use and thus no prescriptive easement. 294 So. 2d at 78.
However, the court stated, "The general public may continue to use the
dry sand area for their usual recreational activities, not because the
public has any interest in the land itself, but because of a right gained
through custom to use this particular area of the beach as they have
without dispute and without interruption for many years." Id.; see also
Trepanier v. County of Volusia, 965 So. 2d 276, 286-93 (Fla. 5th DCA
2007) (discussing Tona-Roma and reversing summary judgment because
issues of material fact remained concerning an alleged customary use of
driving and parking on beaches).
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(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.
(3) Notice of intent to affirm recreation public use on
private property; judicial determination.—A governmental
entity that seeks to affirm the existence of a recreational
customary use on private property must follow the
procedures set forth in this subsection.
§ 163.035(2), (3) (emphases added). Subsection (3) goes on to require
notice and a public hearing, following which "the governmental entity
must file a Complaint for Declaration of Recreational Customary Use
with the circuit court in the county in which the properties subject to the
notice of intent are located." § 163.035(3)(a), (b). The court is tasked
with determining if the governmental entity met its burden to prove "that
a recreational customary use exists." § 163.035(3)(b)2.
Section 163.035(4) provides as follows:
(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.
(Emphases added.)
Before section 163.035 became effective, the Town adopted a
customary use ordinance, Ordinance No. 2018-03, effective June 6, 2018
(the Ordinance), codified as section 13-30 of the Redington Beach Town
Code. The Ordinance states, "The public's long-standing customary use
of the dry sand areas of all of the beaches in the town for recreational
purposes is hereby recognized and protected." It permits the public to
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use the privately owned, dry sand areas of the beach for nine typical
beach activities such as traversing the beach, fishing, sunbathing, sitting
in a beach chair, using a beach umbrella that is less than seven feet in
diameter, picnicking, and building sand creations. The Ordinance
provides for a fifteen-foot private buffer from either the seaward toe of the
dune or the habitable structure—whichever is more seaward.
After the Town enacted the Ordinance, the Owners allegedly
noticed a marked increase in the number of people on the dry sand
beaches of their properties. The Town allegedly encouraged the public to
use the private beaches for engaging in the Ordinance's permitted
activities, and the Owners were unable to exclude others from their
properties. The Owners then filed their complaint against the Town on
July 20, 2021, and filed the operative first amended complaint (the
Complaint) on January 6, 2022, which sought injunctive relief in count
III. The Complaint contains the following illustration:3
3 Graphic by Scott Sleeper, Fort Myers Florida Weekly (Aug. 29,
2018).
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Count III sought "to recover full possession, including the right to
exclude trespassers, of the private property landward from the mean
high-water line." The Owners alleged that the Town's passage of the
Ordinance caused them immediate and irreparable injury and that they
had no adequate remedy at law. In paragraph 32 of its general
allegations incorporated into count III, the Owners alleged that the Town
violated section 163.035 by passing the Ordinance and keeping it in
effect after July 1, 2018, without "seek[ing] a judicial declaration to
affirm recreational customary use on the dry sand beaches." The
Owners asserted in count III that the Town had not legitimately claimed
customary use and that they had a clear legal right to the relief
requested.
The Town filed its answer and affirmative defenses which included
the affirmative defense of the customary use doctrine. The Town
subsequently filed a motion for judgment on the pleadings on all counts
except count V for inverse condemnation based on an as applied taking.
After a hearing on the motion, the trial court entered the Order on
February 3, 2023, concluding that based on the entirety of the statute,
the Ordinance was presumptively valid and, if challenged, the Town
could raise and seek to prove its defense of customary use. In making its
determination, the trial court relied upon Buending, 10 F.4th 1125. The
trial court granted the Town's motion for judgment on the pleadings on
all but count V and denied injunctive relief. The Owners now appeal.
ANALYSIS
Among the Owners' contentions in seeking reversal of the Order is
that they have a clear legal right to exclude others from their property
and that the Ordinance which precludes them from exercising that right
is void and unenforceable because it violates section 163.035.
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Dispositive of this appeal is our determination that the Ordinance does
not violate section 165.035; therefore, the Owners are not entitled to
injunctive relief.
The elements necessary for mandatory injunctive relief are the
violation of a clear legal right, threatened irreparable harm, and the
absence of an adequate remedy at law. See Amelio v. Marilyn Pines Unit
II Condo. Ass'n, 173 So. 3d 1037, 1039 (Fla. 2d DCA 2015). Because we
are reviewing a legal issue concerning the interpretation of section
163.035 to determine whether there was a violation of a clear legal right,
our review is de novo. See Freeman as Tr. of Fiddlesticks Land Tr. U/A/D
September 25, 1984 v. Berrin, 352 So. 3d 452, 454 (Fla. 2d DCA 2022).
In determining the meaning of a statute, its words "are of
paramount concern, and what they convey, in their context, is what the
text means." Id. (quoting Levy v. Levy, 326 So. 3d 678, 681 (Fla. 2021)).
The "courts may not extend, modify, or limit the statute's express terms
or its reasonable or obvious implications because to do so would be an
abrogation of legislative power." Searcy, Denney, Scarola, Barnhart &
Shipley v. State, 209 So. 3d 1181, 1189 (Fla. 2017). Unless it produces
an unreasonable result, the "plain and ordinary meaning" of a statute's
express terms is controlling. Id. (quoting Daniels v. Fla. Dep't of Health,
898 So. 2d 61, 64 (Fla. 2005)). "All parts of the statute must be given
effect, and the Court should avoid a reading of the statute that renders
any part meaningless." Id. All statutory provisions "must be read
together in order to achieve a consistent whole." Id. (quoting Borden v.
E.–Eur. Ins. Co., 921 So. 2d 587, 595 (Fla. 2006)).
The Owners contend that the Town was required to seek a judicial
determination to establish customary use under section 163.035(2) to
"keep in effect" any ordinance enacted after January 1, 2016. Because
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the Town did not seek such a judicial determination under section
163.035(3), the Owners contend that section 163.035(2) rendered the
Ordinance void and unenforceable. In opposition, the Town argues that
to construe section 163.065(2) in that manner does not give full effect to
subsections (3) and (4) of the statute.
Section 163.035(2) provides that "[a] governmental entity may not
adopt or keep in effect" a customary use ordinance concerning a beach
unless the ordinance "is based on a judicial declaration affirming
recreational customary use on such beach." Section 163.035(3) provides
that "[a] governmental entity that seeks to affirm the existence of a
recreational customary use on private property must follow" a specific
procedure. That procedure requires notice and leads to a declaratory
action in circuit court to determine whether the evidence demonstrates
that the identified recreational uses "have been ancient, reasonable,
without interruption, and free from dispute." § 163.035(3)(b)2.
Section 163.035(4) states:
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.
(Emphasis added.)
The Town points out that section 163.035(3) applies to entities that
"seek to affirm" a customary use's existence and that this statute was not
in effect when the Town adopted the Ordinance. The Town did not seek
to affirm by ordinance any customary use after the statute's July 1,
2018, effective date. As to section 163.035(4), the legislature
contemplated that there would be ordinances adopted between January
1, 2016, and June 30, 2018, and that they could be challenged in court,
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with the governmental entity having the right to assert the affirmative
defense of customary use. To support its position, the Town relies on the
Eleventh Circuit's decision in Buending, which concerns the Ordinance
at issue here. The Owners assert that the Eleventh Circuit got it wrong.
We disagree.
Among the issues in Buending was whether the trial court erred in
granting summary judgment to property owners who asserted "that the
[O]rdinance violated Florida law and constituted an unlawful taking." 10
F.4th at 1127. The trial court determined that the Ordinance violated
section 163.035, "reason[ing] that the Town violated the 'kept in effect'
portion of the statute." Id. at 1130. The trial court found that the
violation occurred because "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." Id. The Town
asserted that the property owners' interpretation conflicted with section
163.035(4). Id. The property owners argued that the legislature
intended for subsection (4) "to apply only to localities' defense of takings
suits." Id.
In addressing the issue, the Eleventh Circuit stated:
[T]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.
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
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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.
Buending, 10 F.4th at 1131. The Eleventh Circuit vacated the
determination "that the Ordinance is void under § 163.035 because
it was kept in effect after July 1, 2018." Id. In addition, the
Eleventh Circuit reversed the summary judgment in favor of the
property owners on the Town's customary use defense because
genuine issues of material fact remained regarding "whether the
public's use of the Town's dry sand beaches is 'ancient, reasonable,
without interruption and free from dispute.' " Id. at 1134 (quoting
Tona-Rama, 294 So. 2d at 78).
Like the trial court did here, we find the Eleventh Circuit's decision
persuasive. When section 163.035 is read as a whole, the statute's
proper construction is that ordinances enacted from January 1, 2016,
through June 30, 2018, are not rendered void by the statute but can be
challenged, with the governmental entity permitted to raise customary
use as an affirmative defense in any proceeding.4 Because the trial court
did not misinterpret section 163.035, we affirm the nonfinal Order to the
extent that it denies injunctive relief. We remand for further proceedings
on pending count V for inverse condemnation as applied, with the Town
permitted to raise the customary use doctrine as an affirmative defense
pursuant to section 163.035(4).
4 The trial court also pointed out that the Florida Legislature has
not amended the statute in response to the Buending decision that
issued on August 20, 2021.
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Affirmed and remanded.
KELLY and MORRIS, JJ., Concur.
Opinion subject to revision prior to official publication.
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