Commissioners vote 3-2 to seek customary use law for Perdido Key beaches

Commissioners vote 3-2 to seek customary use law for Perdido Key beaches

Citizens can submit pics, testimonials documenting traditional use of private parcels

By Fran Thompson

In an effort to come up with a permanent solution to an ongoing dispute between private property owners and public access advocates concerning Perdido Key beaches, Escambia County Commissioners voted 3-2 to approve a six month plan to draft a customary use ordinance they hope can somehow satisfy both interests.
Most of Perdido Key’s beaches legally allow public access only to beach that is south of the mean high-water line for walking, swimming and fishing. Access to the dry sand portion of the beach is often restricted to private property owners.
The Florida Constitution already allows public access to all beaches below the mean high water line – the beach that becomes wet during high tide. The doctrine of customary use allows for public access to part of the dry sand areas if it’s “ancient, reasonable, without interruption and free from dispute.”
As expected, Commissioners Steven Barry, Lumon May and Mike Kohler voted in favor of paving the way for a customary use ordinance, while Commissioner Steve Stroberger, who represents Perdido Key, opposed it, as did Commissioner Ashlee Hofberger, who represents Pensacola Beach.
The BCC is asking citizens to submit photos, testimonials and affidavits that show where the public has historically had access to Perdido Key beaches with no resistance from land owners.
For decades before the late 1970’s condo boom on the island, Perdido Key was an Escambia County outpost and hanging out at night and building campfires was common.
Friday nights hanging at the old Baars Hotel structure near the Johnson Beach Rd. intersection was a right of passage for local teens. There was nobody around to object. (That failed hotel project was initiated in 1924 and abandoned following the 1929 stock market crash).
Reading from a statement, Commissioner Stroberger said at the March 26 meeting that asking for citizen input was a waste of county resources, and the county should instead continue to try to purchase more Perdido Key beachfront for public use.
“What we cannot do, at least not constitutionally, is redefine private land as public simply because it’s desirable,” Stroberger stated. “Property rights include the right to exclude.’’
“My question is, where does it end? Because all waterfront property is desirable,” Commissioner Hofberger said before the vote.
Florida Gov. Ron DeSantis signed legislation  in June of 2025 that gave local governments power to legally institute customary use policies that allow public access to beaches considered private without (prior) litigation.
The law, which also streamlined the legal process of beach restoration, will give local governments the authority to recognize recreational customary use without having to go through judicial declarations on a parcel-by-parcel basis, according to Gov. DeSantis.
Before that legislation, customary use was a common-law doctrine in Florida established by a Florida Supreme Court ruling in 1974 ci in Daytona Beach.
The court ruled that the public can acquire the right to use the dry sand areas of a beach if that recreational use has been “ancient, reasonable, without interruption, and free from dispute.”
Because customary use is determined by the specific history of a location, the legal landscape surrounding it has evolved.
In 2018, The Florida Legislature passed legislation that placed restrictions on local governments establishing new public access ordinances unless a circuit court confirmed customary use parcel-by-parcel.
Legislative revisions and ongoing litigation continue to shape how private property rights and the public’s right to access the beach can co-exist in Walton County, as the county battles to prove that historic, uninterrupted recreation rights have been established for specific beaches.
Escambia County Commissioners did create an ordinance that allows only one no trespassing sign per property line 10 ft. from the dune line for  Perdido Key beachfront property in 2023. That vote passed five to zero. A previous directive allowed three signs. The ordinance also requires signs to be no larger than 24” by 24” with a maximum height of 6 feet.
The number of no trespassing signs on the beachside of Perdido Key Dr. condominiums increased greatly in the past 10 years, as condo owner associations aggressively marked their property.
Gary Holt is a leader among a grass roots citizen advocacy group pushing for more public access on Perdido Key beaches. He organized the effort asking the county to remove no trespassing signs from private property.
“Customary use is a game changer for Perdido Key,” Holt said. “Also for the local and out-of-state condo owners that were told by local realtors if they bought in Perdido Key they would have a private beach. For the last 10 years, local realtors have used this sales gimmick to separate their condo listing from Orange Beach and Pensacola Beach.”
The discovery of the original deeds to some Gulf front properties on Perdido Key, dating back to 1957, revealed there are 75-foot public access easements built into those deads, which opened up about 1.2 miles of beach that was previously thought exclusive. That transfer of 64 deeds, which the federal government declared surplus, to private ownership specified the southerly 75 feet of the Gulf front lots were subject to a perpetual easement for a beach for public use.
If implemented, a Perdido Key customary use ordinance would exempt that deeded property from law that historical, long-standing and uninterrupted public use overrides private property rights.
“I do believe that the beaches are for the public, but I also believe in property rights. It’s really quite a tightrope we have to walk with that,” Commissioner Stroberger told PNJ.com in 2025.
Commissioner Kohler referred to a pending case in Florida’s 11th Circuit Court where the town of Redington Beach back in 2018 passed an ordinance that allows the public to use dry sand areas of the beach up to 15 feet away from waterfront properties.
A group of waterfront property owners sued the town in 2019, arguing the ordinance amounted to the unconstitutional taking of their property.
A District Court eventually concluded the town adequately showed a history of customary use of the beach dating back to the municipality’s founding in 1935.
The 11th Circuit is currently reviewing an appeal from property owners to strike down the ordinance that allows public access.
Walton County’s years-long legal battle over the public’s right to use privately owned dry-sand beaches concluded with judicial decisions heavily favoring property owners, as a vast majority of the 1,200 beachfront parcel owners targeted in the lawsuit secured dismissals or settlement agreements.
Facing immense legal costs and pushback, the county reached some settlements where owners agreed to narrow, restricted public access. These agreements explicitly declared that Customary Use does not apply, though many established a transitory zone for the public to walk and sit.
The legal framework for this battle has continued to shift. The state legislature initially passed a law in 2018 stripping local governments of the ability to declare Customary Use on dry-sand beaches without individual court challenges.
The bill Gov. Ron DeSantis signed last year repealed that 2018 statute, aiming to restore local control over beach access rules.
And legal wrangling continued this year, when an appeals court used the most recent bill to deny appeals from Redington Beach homeowners.
Escambia County Attorney Alison Rogers said the county’s ordinance would need to designate the specific beach areas it covers, and that evidence such as deeds, historical records, easements, photograph and personal accounts will be necessary to back up customary use claims.
“Obviously, the best way to defend against lawsuits is that people voluntarily provide that access,” Rogers said.
Commissioner Stroberger said the county had lost a customary use case on Perdido Key in 1978 and directing staff to gather evidence to make that case again would be a waste of time.
“At its core, this debate is not about beach towels, umbrellas or access points,” he said. “It’s about the right of exclusion – the most fundamental attribute of private property ownership. Without the right to exclude, ownership is hollow.
“In America, property rights are presumed to belong to the owner unless lawfully conveyed, purchased, or taken with just compensation under the Fifth and 14th Amendments,” he added. “They are not subject to popular demand or retroactive interpretation.”
The commissioner said the state’s customary use ordinance requires that the area be free from dispute.
“The very fact the matter is being actively litigated undermines the claim,’’ he said. “If the right truly existed, we would not be here debating this.”
The commissioner pointed out that Perdido Key already has miles of public beach and many public access points and ideally will purchase even more beach for public use.
“What we cannot do, at least not constitutionally, is redefine private land as public simply because it’s desirable,” he said. “I’m not counting votes, I’m not counting donations. I’m looking at the Constitution and property rights. I’m thinking about my own property and how I would feel if it was happening to me.”
Commissioner Barry said the county should receive information from citizens who feel strongly about the issue.
“If we need to give board direction to say we think it’s an important enough issue that it’s worth the staff’s time to allow them to receive information from citizens. Maybe we don’t get a lot of substantial, competent evidence, but maybe we do.”
Commissioner Kohler said he remembered when it was customary for citizens to have access to Perdido Key beaches. “I can tell you as a sailor that came here that it was customary use out there. That’s where you went when you didn’t have money,” he said.