Article Courtesy of The Naples Daily News Press

By Thaddeus Mast  

Published January 17, 2019

Winter visitors are flocking to warm Gulf waters, quickly filling Vanderbilt Beach with towels and umbrellas.

Look closer, and one will see another sign of the tourist season in Collier County: security guards.
 

Hired beach attendants shoo away public visitors to ensure fee-paying condo owners get their promised beachfront views.

Vanderbilt Beach-goers Kathrine Schroeder and Kelsey Berberich spent a few minutes behind the umbrella line on the Bay Colony beach before an employee approached the pair.

“We were told to go in front of the cones,” Schroeder said. “(The attendant) was very nicely, so we moved. I get it.”

The two moved as close to the water as possible, while still straddling the condo’s property line.

“I hope we’re fine here,” Berberich said. “No one’s said anything.”

The cones along the beach mark the mean high-water line. All sand seaward of the line is always public. People walking up and down the beach or swimming are usually in the public space.

A property owner can own any beach landward of the water line. The dry sand mostly used for sunbathing, picnics and sports is in the private area.

Neither Ritz-Carlton or Bay Colony representatives returned requests for comment.

Collier County commissioners do not plan on opening the private beaches for the public, Commissioner Andy Solis said.

“I think everyone here plays nice, and there’s no reason not to continue to do that,” Solis said.

In the past, fences were placed along the Ritz-Carlton property lines. Public outcry and county requests brought down the fence, although the private beach attendant stayed.

An ordinance passed by the commission serves as a defense if a beachfront property owner were to sue the county.

Solis was the sole commissioner against the ordinance, saying it only brings attention to the issue instead of leaving the current situation lie.

“If someone tried to (take control of public beaches), we would have staff talk to them,” Solis said. “Hopefully, it’s not an issue.”

Any further commission pushes toward public use of private land would likely lead to lawsuits, Solis said.

Public beach debates have spread beyond Collier County. Redington Beach, a barrier island town near St. Petersburg, is wrapped up in beach litigation. Some beachfront property owners thought local open beach laws went too far and sued the small town.

The public beach law passed in the 2018 legislative session requires counties and cities to go through a costly and lengthy process to ensure public access, Redington Beach attorney Robert Eschenfelder said.

“I think the people who did make (the law) made sure it was so cumbersome and expensive that (local governments) would not go through the effort,” he said. “They sided with the landowners.”

Before the statute, county public use ordinances illegally used private land, said bill sponsor Sen. Kathleen Passidomo, R-Naples.

Public beach laws center around the concept of “customary use.” Beaches traditionally used by the public for generations can be labeled public, even if they are private property. Proving a
beach’s customary use is key in court battles.

“(Customary use ordinances) were a takings claim,” Passidomo said. “You can’t just pass an ordinance and take people’s land.”

The new law states a judge must decide if public beachgoers can use private property, Passidomo said. The bill’s standardized process avoids any lawsuits.

“The bill will make the process smoother and more effective,” she said. “Without this, it’s the Wild West. There would be different methods of litigation all over the place.”

Walton County, in Florida’s Panhandle, passed a customary use ordinance in 2017 that opened private sands to beachgoers and tourists. Before the state law, several landowners sued the county, claiming the county law was illegal.

The state law trumped Walton County's public beach rules in June 2018. The county is now going through the new state-mandated process, which could take years.