DUNE ALLEN BEACH — The Turgeon family from New Orleans was sitting on the beach on a hot Tuesday morning watching their young children play in the sand, when they were approached by a Walton County sheriff’s deputy.

The deputy had been called by homeowners in Vizcaya, a multimillion dollar gated beachfront community, who wanted to enforce trespassing laws on the beach in front of their homes.

“He was nice about it,” Leah Turgeon said as she began packing up her things. “But it’s definitely a hassle. Now we have to move all of our stuff.”

The Turgeon family, who said they were confused about signage and were unaware of where the “public” beach met the “private,” was one of many caught in the crosshairs of the new customary use law that went into effect July 1. The law, called House Bill 631, essentially voids Walton County’s customary use ordinance and allows private property owners the right to claim the beach in front of their homes as private property, up to the mean high water mark, or wet sand.

Homeowners in the Vizcaya neighborhood have been perhaps the most vocal supporters of the new law in Walton County, and Bill Hackmeyer, a property owner and Homeowners Association president, is a big part of the reason why.

“We had to hire a (security) guard service July 1, which for us is a lot of money,” Hackmeyer said as he walked his golden doodle, Jack, on the beach. “That’s true that we’re rejecting people outside of us from using our beach, because we do not want the county to allege customary use at Vizcaya.”

As the customary use battle continues to wage at the county, state and federal levels, law enforcement agencies are grappling with how to enforce it. And beachgoers are struggling with how to visit the world-renowned and heavily marketed Emerald Coast beaches and enjoy the surf and sand—without getting arrested.

The battle rages on

Battles over customary use and private property rights on Northwest Florida beaches go back decades.

The term "customary use" began popping up in Daily News articles in 2000, when beachfront property owners in Destin wrangled with the city council over ordinances allowing the public to use what some homeowners perceived to be their private beaches.

Over the years, lawsuits have been filed in various courts seeking to define customary use in Okaloosa and Walton counties.

Walton County became the hotbed for customary use discussions in the state of Florida in 2016, when commissioners approved an ordinance based on the customary use concept that beach areas have been publicly accessed for as long as humanity has been around, and should therefore remain open to visitors without interference.

The ordinance allowed the public access to certain dry sand portions of the county’s beaches and prohibited signs and fences asserting private property rights.

Many coastal property owners objected to the ordinance, claiming commissioners were allowing people to trespass on land that they legally purchased.

But H.B. 631, passed by the Florida Legislature this year, voided Walton County’s customary use ordinance as of July 1.

“The illegal law, the unconstitutional ordinance that Walton County passed two years ago, was nullified because the state legislature and the governor realized that they can’t just arbitrarily pass an ordinance that may or may not be constitutional,” Hackmeyer said, adding that he considered H.B. 631 a “win.”

Hackmeyer hasn’t been the only public supporter of beachfront property owners. Walter E. Blessey Jr., who owns a $4.6 million beachfront home in Dune Allen Beach, filed a federal lawsuit on June 14 that names Walton County as a defendant.

Blessey’s lawsuit, filed in U.S. District Court by a Tallahassee law firm, is unlike others filed thus far. It argues that customary use doctrine is a product of Old English Common Law and therefore not applicable in the United States.

“The common law Doctrine of Customary Use, while valid under England’s common law, is repugnant to the U.S. Constitution and cannot be the law of Florida,” the lawsuit states.

The Walton County Commission asserted in a June press release that “Walton County government officials are vowing to fight the efforts to deprive the public of their long-held rights to the sandy portions of the beach.”

Lawyers for Walton County are currently exploring legal options in the case, and are continuing their process of "providing documentation to support the customary use of Walton County’s beaches,” a county spokesman told the Daily News.

A public hearing has been scheduled for Sept. 6 at which county officials are expected to announced their intent to pass a new customary use ordinance. Following the announcement the county, as provided for in HB 631, can seek a court’s declaratory judgment in favor of customary use doctrine on Walton County’s beaches.

In the most recent legal challenges filed by private property owners, 17 of them, including condominium boards or homeowners associations, have sent letters to county officials over the course of the past few months demanding the county stop allowing its vehicles access to dry sand areas. Each owner is represented by one of four law firms.

Some of the property owners have asked that county trash receptacles on their land be removed and said they will take over garbage collection.

They’ve also demanded that emergency vehicles and code enforcement drive on the wet sand areas as well.

County beach officials have said that such a policy would threaten the entire beach trash collection and pick-up processes.

The county attorney and homeowners’ attorneys have a 30-day window to reach a compromise. If they fail to do so, the county has said it will consider suspending beach trash pickup on private property

Bound by rule of law

As the courts and attorneys continue to work out the details of customary use, law enforcement has to figure out how to effectively enforce the new rules—something Walton County Sheriff Mike Adkinson said is no easy task.

“What we’re trying to do is make the best out of a difficult situation,” Adkinson said. “”We’re at the convergence of property, criminal and constitutional law, and I’m not bound by what I like, I’m bound by the rule of law."

Two weeks ago, the State Attorney’s Office said it would be unfair to prosecute trespassing cases until a court decides whether or not customary use applies on private property in Walton County.

“The public as well as any individual might have a right to the use of beach based on the concept of customary use,” Greg Anchors, the now-retired chief assistant state attorney for Walton County, said in a June 28 letter to Sheriff Michael Adkinson that laid out the now rescinded policy.

Relying on Anchors’ guidance, Adkinson announced his agency would not arrest anyone for criminal trespass on private coastal property.

But Adkinson was caught off guard July 5, when the State Attorney’s Office reversed course, saying it will prosecute valid charges of trespassing brought against beachgoers in South Walton County.

A decision to review each case brought “on its individual facts and circumstances” and “determine if criminal charges are appropriate” was announced July 5 in a news release issued by State Attorney Bill Eddins.

“We did not anticipate that change and it does fundamentally have some effects,” Adkinson said. “However, our basic premise really has not changed—we’re going to do everything we can to not have to make arrests for trespassing.”

Adkinson said his office has made no arrests for trespassing on private beach property since July 1, though his deputies have been called several times to enforce trespassing rules on private beaches, mainly in the Vizcaya neighborhood. His deputies inform people they are on private beach and ask them to leave, and they always do, he said.

 A new wrinkle

 Gov. Rick Scott inserted himself into the Walton County fray late Thursday when he issued an executive order urging Florida counties “to protect public beach access.”

The order was prompted, a news release announcing Scott’s action said, by “considerable confusion” created by HB 631.

“I’m committed to keeping our beaches open to the public and this executive order makes this commitment clear,” Scott said in the release.

Though Scott’s office has steered clear of commenting about Walton County, the only Florida county directly immediately impacted by HB 631, First Judicial Circuit State Attorney Bill Eddins said he believes the order may clear up some questions pertaining to beach access and customary use.

While under the new law the public is denied access to dry sand beach areas rightfully claimed by private beachfront owners, Eddins said, beachgoers are entitled to traverse those private properties on the wet sand portion of the beach.

The executive order “helps the land owner understand the public still has access to the beach,” Eddins said.

Scott’s order also requires the Department of Environmental Protection to “serve as an advocate for the public’s right to public beach access,” which Eddins saw as a positive step forward.

“It puts in place a procedure for the general public to provide input to the Florida Legislature that legislators will be able to consider when deciding whether they will repeal or amend that new law,” Eddins said.

‘It kind of sucks’

 Stormy Stoy and her family were one of the families asked to leave by a sheriff’s deputy Tuesday. They said the deputy told them they could move a few feet up onto the wet sand, or go to a public beach past the no trespassing signs.

Stoy said she, her husband and two sons were confused and disappointed.

“It kind of sucks a little bit,” Stoy said. “We weren’t told that this was a private beach and this was a rule. We came from Oklahoma and we’re just not aware of what is public and what is private, and this is pretty much all private, apparently.”

A common misconception Adkinson said his deputies have to explain to people is the idea of renourished beaches. All beaches east of Topsail Hill Preserve State Park, which are essentially all 30A beaches, are not renourished beaches, meaning taxpayer dollars haven’t been used to renourish them, Adkinson said.

Almost all beaches west of Topsail, including all Sandestin and Miramar Beach beaches, as well as beaches in Okaloosa, Bay and Santa Rosa Counties, have been renourished with taxpayer dollars, and thus private property claims on those beaches don’t hold as much water.

But Adkinson said above all, many of the private property disputes could be alleviated with a little bit of understanding.

“Many of these situations—in fact, the vast majority of them, could be eliminated or mitigated with the use of simple common courtesy on behalf of all parties involved,” he said. “It frustrates us for someone to call and say they want to have someone removed from what they perceive to be their private property, and not even have the common courtesy to have a conversation with someone first.”

How will this affect tourism?

Jamie Cary and his wife Markena are from Western Kentucky and have been coming to the area since the 1990s. The couple had chairs set up just on the other side of Vizcaya’s private property line and said hearing all the commotion about customary use made them think twice about vacationing next year.

“It could negatively affect the tourism and my understanding is that’s what drives everything down here,” Jamie said. “Every time people come here, you rent a home for $4,000, you spend $500 for groceries, you go out to eat and spend $300. In three days I’ve spent $7,000, and if you don’t want that money cause you’ve run everybody off, that could create a problem.”

But Hackmeyer, the HOA president at Vizcaya, said the new law would be "great" for tourism.

“It definitely does not hurt tourism,” he said. “People in other states and people who have their own homes who come down here to vacation realize that trespassing is not allowed in other states and therefore it shouldn’t be allowed here.”

David Turgeon, whose family was asked to leave the beach on Tuesday, said he was furious and would have gotten arrested for trespassing if his daughter hadn’t stopped him.

The visitor from New Orleans said they were staying at a rented beach house just up the street from Vizcaya, and the beach access directly adjacent to Vizcaya is the most practical for them to access since he has back problems and can’t walk very far.

After the ordeal, David vowed his family would never return to vacation in Walton County.

“I mean, we’ve always driven the extra two hours past Fort Pickens to come here because you’ve got this beautiful squeaky sand and the water is crystal clear,” he said. “Pensacola is not quite as nice, but if we’re not going to get run off the beach, we’re going to go there.”

His wife, Karen, agreed.

“It’s just not as friendly here anymore,” she said. “It’s just silly. We had to move up to the high water line, which isn’t a big deal but it’s just more and more rules that you have to obey. We want to come to the beach and just enjoy the beach.”

Kay Guanci from Pensacola was staying at a rented home in Vizcaya and was sitting underneath a tent with her friend, Ann Pankey, from Oklahoma. She said she also wasn’t aware of the private beach rule and was confused when she saw deputies asking people to leave the beach.

“I wondered why they did that,” she said. “Those people weren’t bothering us, they were just sitting on the beach playing with their children. We don’t understand the issue, I guess.”