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Authors

S. Brent Spain

Abstract

This comment addresses the problem of decreased public access to the dry sand areas of Florida's beaches resulting from the vast portion of Florida's beaches being privately owned. The author argues that, in the absence of state legislation protecting public beach access, local governments should enact ordinances protecting the public's customary right to utilize the dry sand areas of their beaches. In support of this argument, the author notes that the prescriptive easement and custom doctrines are the primary means of securing public access to the dry sand areas of Florida beaches. However, because of the presumption against acquisition of land rights based upon prior use and the adversity requirement needed for prescriptive easements, the author concludes that the prescriptive easement doctrine is an inadequate means of preserving such access in Florida. Conversely, based on language provided in the Florida Supreme Court's decision in City of Daytona Beach v. Tona-Rama. The author argues that the doctrine of customary rights is a viable alternative for protecting public dry sand beach access in Florida. In arriving to the conclusion that custom is perhaps the best means of protecting public dry sand beach access in Florida, the author notes that: (1) custom does not require the proof of adversity that prescriptive easements require; (2) private beachfront landowners should not be held liable under, under Florida tort law, for injuries sustained by the public; and (3) the doctrine of custom has sustained a takings challenge in Oregon. For these reasons, the author advocates that cities, such as Destin, FL (which is discussed within the article), that wish to maintain public access to dry sand beach, despite opposition from private landowners, should enact ordinances protecting the public's customary right to utilize the dry sand areas of Florida's beaches.

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