A discussion of routine & complex issues which confront all types of shared ownership communities.

Condo and HOA Law Blog By Donna DiMaggio Berger, Esq.

Condo and HOA Law Blog By Donna DiMaggio Berger, Esq.
This blog covers every topic under the sun related to condominiums, cooperatives, HOAs, timeshares and mobile home communities from the unique perspective of attorney Donna DiMaggio Berger.

Tuesday, September 06, 2011

Condominium Association Loses Fight to Keep Its Beach Private!

A federal judge in Pensacola has dismissed a lawsuit filed by the Crystal Dunes Owners' Association and individual condominium owners alleging that the City of Destin, the City Manager, the Mayor and the Okaloosa County Sheriff all violated their due process and equal protection rights by failing to provide the association with notice and an opportunity to be heard before declaring their beachfront property subject to "customary use" and therefore open to the public.

The lawsuit was filed in May, 2010, after the City and the Sheriff's Office allowed people to use the beach 20-feet landward of the line between wet and dry sand in front of the condominium complex. The association had argued that the property was private and therefore subject to enforcement of trespassing laws.

The Erosion Control Line was established by the State of Florida to distinguish between publicly and privately owned property. The defendants in this case argued that the plaintiffs failed to state a claim for a violation of their procedural due process rights because they have no right to enforcement of the criminal trespass laws. The defendants further argued that the plaintiffs failed to state an equal protection claim as they did not allege that other citizens in similar circumstances received more favorable treatment.

The U.S. District Court for the Northern District of Florida cited the case of Town of Castle Rock, 545 U.S. at 755, as follows:

"While states may provide their citizens with benefits, the mere provision of a benefit does not bestow upon citizens the right to receive it; indeed, benefits are not protected entitlements if government officials may grant or deny them in their discretion....In Florida, law enforcement officials have discretion in determining whether to enforce the laws, particularly where, as here, the statute contains no mandatory enforcement language."

Chief U.S. District Judge, M. Casey Rodgers, clearly felt that the association members had no right to enforcement of Florida's criminal trespass laws and thus, were not entitled to notice or an opportunity to be heard before the City of Destin and the Sheriff's Office decided not to enforce those criminal trespass laws against members of the public wishing to use the beach in front of their condominium complex.

Beachfront associations in Florida would be wise to discuss this case with association counsel to determine whether their current expectations regarding the private or public nature of their beaches are reasonable and enforceable.

A copy of the Judge's order can be read online, here: http://richmedia.onset.freedom.com/nwfdn/lqz5g2-4lawsuit.pdf

This work by Donna DiMaggio Berger, Esq. is licensed under a Creative Commons Attribution-NoDerivs 3.0 Generic License.

1 comment:

Graham Ginsberg said...

This is good news for the public. I remember when the police in the Destin area arrested a tourist for sitting just off off the wet sand.

Such a shame that many home buyers come from up north and try to claim what has been public for hundreds of years.

Graham Ginsberg
Naples Florida

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