# Greacen v. Town of Redington Beach

> District Court, M.D. Florida · August 12, 2024

URL: https://www.frixlaw.com/law-library/cases/10642646

## Case

- **Court:** District Court, M.D. Florida
- **Decided:** August 12, 2024
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10642646

## How later opinions describe it (automated extraction)

- noting that the federal courts must resort to “existing rules or understandings that stem from an independent source such as state law” to define the range of interests that qualify for protection as “property” under the Fifth and Fourteenth Amendments

## Opinion text

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION

SHAWN BUENDING, ROBERT
DOHMEN, THOMAS K. BROWN,
HARRY S. FIELDS, WENDY
FIELDS, SHAWN MOORE and
DAGMAR MOORE,

Plaintiffs,

v. Case No: 8:19-cv-1473-VMC-SPF

TOWN OF REDINGTON BEACH, a
Florida municipal corporation,

Defendant.

AND

PAMELA GREACEN and
ARTHUR L. BUSER, JR.

Plaintiffs,

v. Case No. 8:20-cv-2568-VMC-AAS

TOWN OF REDINGTON BEACH,

Defendant.
__________________________________/

MEMORANDUM OF DECISION

This cause came on for bench trial beginning on April 8,
2024. Pursuant to Fed. R. Civ. P. 52(a)(1), the Court makes
the following findings of fact and conclusions of law.
I. Procedural History
The complaint in Buending, et al. v Town of Redington
Beach was originally filed in state court on June 21, 2019,
and removed to federal court on June 24, 2019, being assigned
case number 8:19-cv-1473-JSM-SPF. The Complaint in Pamela
Greacen, and Arthur L. Buser, Jr. v. Town of Redington Beach
was originally filed in state court on October 28, 2018. On

October 30, 2020, Plaintiffs in the Greacen case filed an
Amended Complaint asserting federal claims. That action was
subsequently removed to federal court on November 3, 2020,
and assigned case number 8:20-cv-2568-JSM-AAS.
On February 19, 2020, the predecessor judge entered an
order (Doc. # 74) in the Buending case, granting summary
judgment to those Plaintiffs. The Town appealed and on August
20, 2021, the Court of Appeals vacated the summary judgment
order in Buending and remanded the case for a trial. Buending
v. Town of Redington Beach, 10 F.4th 1125 (11th Cir. 2021).
On November 18, 2021, the predecessor judge consolidated

the Greacen and Buending cases “to the extent that the cases
will be tried together as a bench trial.” (Greacen Doc. #
30). On November 15, 2022, the predecessor judge recused
himself from the procedurally consolidated cases. (Buending
Doc. # 140). The consolidated cases were subsequently
reassigned to this Court.
II. Plaintiffs’ Claims
Of the claims remaining for trial, Plaintiffs all claim
that Ordinance 2018-03 of the Town of Redington Beach is a
facial and as-applied taking. In addition, Plaintiff Wendy
Fields claims that she was removed from service on the Town’s
Board of Adjustment (“BOA”), and that this removal

constituted First Amendment retaliation. As to the Takings
Clause claims, the Town asserts the affirmative defense of
customary use.
III. Findings of Fact
In the 1920s, before it had its own name and borders,
the land that now includes Redington Beach began being bought
by an Indiana businessman named Charles Redington. The land
was initially referred to as the Redington Beaches. In 1935,
Mr. Redington built the first home on what is now Redington
Beach.1 T IV-84, 88. According to the testimony of Dr. Joe
Knetsch, the historian retained by the Town, the Redington

Beaches did not have connectivity to the mainland until other
investors built a wooden bridge in the mid-1920s. Id. at 85.

1 Where the Court cites to the trial transcript it will
designate the cite with a “T” followed by the volume number
in roman numeral followed by the page number.
In 1945, the Town of Redington Beach became incorporated as
a municipality. Id. at 88. Early Pinellas County Commission
meeting minutes reflect that the County Commission adopted an
ordinance to prohibit driving cars on the beach in Redington
Beach. Among other things, the ordinance references the
“safety of beachgoers.” Id. at 87.
Dr. Knetsch testified that his research of Town

Commission meeting minutes from the beginning of the Town
revealed that at the very first meeting of the Town
Commission, “Commissioners were discussing the fact that
Charles Redington was going to donate certain parcels of land
to the Town to ensure that there would be beach access,” and
the establishment of a “beach access committee.” T IV-89-90.
The Town is entirely residential and, but for several
condominium buildings at the very north end of the Town, it
features single-family homes. T I-34. The Town has
approximately 1,400 residences and is a little over a mile
long. T IV-141. The Town owns a small vacant residential lot

on the beach called Beach Park which is approximately 80 feet
wide. Otherwise, the beach in the Town is under private
ownership. T IV-149.
Plaintiffs own beachfront residential lots in the Town
fronting the Gulf of Mexico. Their ownership extends to the
mean high-water line (“MHWL”). Pamela Greacen and Arthur
Buser purchased their home at 16120 Gulf Blvd. in 2011. T I-
27. Wendy and Harry Fields purchased a home at 15810 Gulf
Blvd. in 2004. T II-184. In 2017, Thomas Brown purchased a
home at 15802 Gulf Blvd. Shawn and Dagmar Moore purchased a
home at 15912 Gulf Blvd. in 2017. Adjacent to the Moores’
former home in the Town is the previously mentioned Beach

Park, which consists of a parking lot leading to the beach.
In June 2018, Shawn Buending and Robert Dohmen purchased a
home at 15808 Gulf Blvd.
On June 6, 2018, the Town of Redington Beach, Florida,
passed Ordinance 2018-003, which became effective on that
date. The Ordinance created § 13-30 of the Town Code,
subsection (a) of which provided “[t]he public’s long-
standing customary use of the dry sand areas of all of the
beaches in the town for recreational purposes is hereby
recognized and protected.” The Ordinance went on to set forth
a list of traditional beach activities which were prohibited

from being “impeded or interfered with” by anyone (including
the owners of the private segments of the beach). The
Ordinance provided that the rights being recognized derived
from the doctrine of customary use.
At trial, the Town provided a range of documentary
evidence and witness testimony2 supporting its customary use
defense. As the exordial clauses to the Ordinance confirm,
Charles Redington founded the Town in 1935 and donated beach
access points, which have existed since the Town’s inception.
There are five such access points. T I-109. These access
points, in the form of boardwalks, are repaired and maintained

by the Town. The Town code, in turn, defines a “beach access
point” as “[a]ny access used by the general public or private
property owners for the purpose of gaining access to the
beach.” Town Code § 4-9(b) (emphasis added). Of course, the
beach access points could, as is argued by Plaintiffs, be
consistent merely with the use of the wet sand. However,
additional evidence supports the Town’s assertion of
customary use of the dry sand beach.
For one, the Town proved that it has raked the entire
length of the beach in the Town for decades. Many of the
Plaintiffs contended that the Town did not begin raking the

beach until 2019 after they filed their suits, and that they

2 While the Town had proposed to call over 80 witnesses (Doc.
# 138), during the pre-trial conference the Court, exercising
its authority to manage the trial, limited the Town to thirty
witnesses. T I-19. Although the Court found all of the Town’s
witnesses credible, the Court will not summarize the
testimony of each witness here.
pay for their own private raking service. But several Town
officials and witnesses testified raking has occurred for
decades. For instance, Mayor Will testified that the Town has
raked the beach since he moved into the Town in 1992. T IV-
151. He also testified that Town records confirm that the
Town has owned a tractor since the 1970s and that one of the
primary duties of the Town’s long-serving maintenance

employee was to rake the beach with the Town tractor. Id. at
152, 154. Plaintiff Greacen even admitted that not all
beachfront residents use a private raking service, estimating
that the portion who do may be under 50%. T I-40. It can also
not be argued that the Town’s raking was only confined to the
beach below the MHWL because, as Plaintiff Gracean confirms,
some residents complained that the Town’s rake had disturbed
vegetation planted by owners near their seawalls. T I-89, 91.
It stands to reason that, if the Town believed the beach to
be private, it would not expend tax dollars paid by all Town
residents to maintain a beach only a handful of residents

would use.
The Town also provided extensive and consistent witness
testimony of the use of the “dry sand” beach in the Town.3

3 The parties disputed terminology at trial, but the Town’s
witnesses were all asked by the Town’s counsel to confine
For instance, Barry Scarr testified that he first moved to a
non-beachfront home in the Town as a child in 1956. He then
went off to college in 1972, but returned in 1986. T III-63.
Back when Mr. Scarr’s parents bought their home, their home
(on the land side of Gulf Blvd.) faced the Gulf of Mexico and
“the beach was everything.” T III-66. Mr. Scarr testified
that the beach is where he played as a child. He and his

friends walked and sunbathed on the beach. When he went to
high school, he continued such uses. His friends, some who
lived on the Pinellas County mainland, would come to his house
and the group of friends would set out to the beach. Id. at
66-67. Mr. Scarr also confirmed that when his parent’s
relatives and friends visited, they would go to the beach as
well. Id. Young Mr. Scarr would throw a frisbee, toss a
football, and get under an umbrella and socialize at least
weekly. Id. at 67.

their testimony to that portion of the sand waterward of the
owners’ seawalls and where the “wet sand” began. Since the
Plaintiffs all admitted that they could not determine where
the MHWL was without a survey (see, for instance, T I-87, T
II-232), and no party submitted a survey depicting that line,
the Court will not attempt to determine where Plaintiffs’
property lines end along the Gulf of Mexico. To resolve the
question of customary use in this case, that precise
determination is not necessary since, if the beach is beyond
the MHWL, then it is open for public use as sovereign lands
anyway.
Mr. Scarr and his wife had children who were raised on
the beach. He testified “our kids loved beaching, swimming.
A lot of sandcastles. A lot of, again, sports, playing,
throwing. Just enjoying the whole beach some with our kids.”
T III-68. Mr. Scarr testified that his children were born in
1978 and 1980, and that “both kids . . . would have a lot of
friends go down [to the beach] because they’d end up at our

place first, and then they would be heading down to the
beach.” Id. at 76.
Mr. Scarr is now into his third generation of family
members who make use of the beach in the Town:
When we first moved down there, it was my parents’
friends and my sisters and brothers, older folks that
lived in Canada. That was their whole thing was to get
to the beach. . . . And then as I grew up, it became my
friends, and then my kids, and now my grandkids.

T III-77.
Mr. Scarr also witnessed others using the beach. He
confirmed, for instance, that he witnessed various events
such as holiday events, memorials, and weddings “in the dry
sand.” T III-70. He also confirmed there were events organized
by the Property Owners Association (“POA”). Id. at 71. He
confirmed that these events were “annual” and that they often
drew “hundreds” of residents. Id. at 72. He noted, “I see
people sitting out on the beach all the time . . . with
umbrellas or not, or people fishing, or just . . . sitting on
the beach and getting a tan. And there’s swimming too.” T
III-73. He testified that he sees people fishing “every time
I go to the beach. I don’t know what they’re catching, but
they’re there.” T III-78.
The Court also received testimony from Mr. Scarr’s now
adult daughter, Kelly Scarr Johnson. She confirmed she moved

to the Town with her parents when she was five years old, and
lived there through college. T III-103. She testified that
her first memories of using the beach on her own was when she
was about 10 years old. During summers, she took her bike to
the beach “almost every day”, and she and her best friend
would lay out and “look at all the houses.” Id. at 104. She
confirmed that while she would gain access to the beach via
one of the beach access points, she would move up or down the
beach behind the homes to “find a place where there aren’t a
lot of people.” Id. at 105. If the portions of the beach right
adjacent to the beach access points would get full, others

who arrived would tend to move down the beach to a less
populated spot. Id. at 107. She also confirmed that while she
was in school, she was on the swim team, and her coach made
the team go to Redington Beach and run in the dry sand for a
workout. Id. at 111.
Mrs. Scarr Johnson also confirmed that she now has
children of her own, and that she regularly brings them to
Redington Beach. T III-108. In fact, she confirms her kids
visit the beach “probably even more than I ever went myself.
They’re 10 and 12 right now.” Id. at 109. They are regular
visitors on Mother’s Day, having been there eight of the last
ten such days. Id. They are also there during spring break.

Id.
The Court also received testimony from Barry Steagall.
Mr. Steagall moved to the Town in the summer of 1981 and has
lived there for 43 years. T III-30-31. Mr. Steagall testified
that he and his then-wife selected a home in Redington Beach
that was not on the beach. However, he and his wife “went to
the beach a lot” and that the Town afforded him access to the
beach. T III-31. He confirmed that he would regularly take
lunches to the beach, swim at the beach, and take umbrellas
to the beach. Id. He also confirmed that his friends would
make similar uses of the beach, and that “it was just a

friendly group of people.” Id. He confirmed that the beach
would be fuller on weekends, and that in the mornings, “you
would see the elderly people walking on the beach.” Id. His
own uses included jogging on the beach probably five days a
week.” Id. He noted there are “a lot of young couples and
they bring their kids there.” Id. Mr. Steagall also confirmed
that he witnessed other members of the public using the dry
sand area of the beach “all the time.” T III-34. He noted
that “people picnicked on that beach. There have been funeral
sermons on that beach. We have cookouts on the beach, the 4th
of July, and it’s not in front of Beach Park, it’s usually a
couple houses down.” Id. He also confirmed there have been

weddings on the beach, and “there are kids surfboarding out
there,” and that “each night you see the families walk out
and they enjoy the sunsets all up and down Redington Beach.”
Id.
Mrs. Katherine Steagall also testified. She has lived in
the Town for thirty-four years, and she testified that she
has many relatives all over the world, including from Taiwan,
Spain, Charlotte North Carolina, Orlando, and closer in the
cities of Venice, Seminole, and St. Petersburg. She noted
that over the years, these family members would “gather at
our house, which was very desirable for everyone that lived

inland [because] we would go down to the beach. And I had
children and grandchildren that I took to the beach with us.”
T III-121. She confirmed that activities included frisbee,
volleyball, taking pictures, and sunbathing.
Cameron Bradbeer testified that he grew up on Redington
Beach, living in his parent’s home in Town since he was born
in 1984. T IV-18-19. When he was young, his parents would
take him and his brother to the beach. Neighbors would often
join. They would build sandcastles. Id. at 19. He testified
that he now has two nieces and that his family takes them to
the beach in Redington Beach. They build sandcastles, fly

kites, and swim. Id. at 20. According to Bradbeer, no one has
ever approached him or his family and asked them to leave or
told them they were trespassing. Id. He testified, “I always
believed that the dry sand was public – you know, it was
public beach and public access, like anywhere else in Pinellas
County.” Id. at 24.
The Town’s current Mayor, David Will, testified that he
has lived in the Town since 1992 (thirty-two years). He also
raised his son (born in 1995) on the beach. T IV-139-40. Mayor
Will’s personal uses of the beach as a younger man included
socializing with friends, throwing a frisbee, fishing,

playing paddleball, and sunbathing. Id. at 140. After having
a child, Mayor Will’s beach uses included chasing birds,
making sandcastles, picnicking, and boogie boarding up and
down the beach. Id. at 143, 145. His uses of the beach have
been consistent over the decades he has lived in the Town,
and he or his family have used the beach “probably five days
a week.” Id. at 144.
Even Plaintiff Greacen admitted that residents “come,
sit down . . . tan . . . go for a swim, and . . . go home.”
T I-46. Residents also surf when there is a “really big storm
day.” Id. at 45.
The Town also established that there have been a variety

of annual events conducted, at least in part, on the
privately-owned portions of the dry sand beach. For instance,
the long-serving former president of the POA testified that
residents would have an annual cookout on Independence Day,
and there would be one or two beach cleanup days a year
sponsored by the POA. Plaintiff Gracean acknowledged knowing
about these organized clean up days. T I-96.
Mrs. Steagall confirmed that she has:
been to Redington Beach property association functions
there. I’ve been to bonfires, family gatherings. We’ve
even had ceremonies for people that have passed away in
the community where we’re honoring all of them. And there
are many, many people that turn out for those events
also.

T III-124.
Mr. Kenneth Sulewski also testified. He has been a Town
resident for over 25 years. T III-133. In addition to being
a resident, he was president of the POA between 2013 and 2020.
He confirmed that,
during that time, we had two official events taking place
on the dry sand. One was a beach party, usually in May
or the 4th of July . . . where we would set up a barbecue
and food tent, and we’d cook hotdogs for our group and
for anyone walking the beach. Secondly, every 5th of
July, we would organize a beach cleanup only on the dry
sand. And we’d walk the entire length of Redington Beach
picking up all the debris left over from the previous
night’s fireworks. . . . And we cleaned from the dry
sand to their seawall, to their property line, what I
consider their property line.

Id. at 135. Mr. Sulewski confirmed that while the POA
coordinated with one of the homeowners:
Everything else was in the sand in front of [the private
homes]. We didn’t ask their permission. We just held
that every year, and we had no complaints from the
neighbor whose house we stood in front of or any other
neighbors.

Id. at 137. He confirmed that these events drew “at least a
hundred” attendees and that they were an annual event for at
least 24 years. Id. at 137-138. When asked if homeowners came
out to complain, Mr. Sulewski responded, “They came out and
wanted a hot dog, which we provided.” Id. at 135.
Mr. Sulewski also had his own personal uses of the beach
during his time living in the Town. For instance, he met his
wife on the beach in Redington Beach at a gathering of other
residents on the dry sand behind a private residence. Id. at
138.
As to the use of the beach by those other than Town
residents, the evidence did not show that the small beach in
the Town attracted throngs of visitors. Still, the Town did
establish that certain classes of non-residents have made
historical use of the beach. For instance, Plaintiff Gracean
admitted that a property in the Town called the Royal Orleans
was “a series of little cottages on the east side of Gulf

Blvd [and that] they are grandfathered in for a vacation
rental.” T I-92. Gracean also confirmed that there are other
single-family homes and condo units which are listed on VRBO
and Airbnb as vacation rentals. T I-93. She confirmed that
these non-resident visitors would have places to park during
their stays given parking provided at the rental properties.
T I-100. All of this evidence suggests there are customs,
housing, and parking supporting visitors’ use of the beaches.
Plaintiff Wendy Fields was appointed to the Town’s BOA,
which reviews requests for variances from the Town’s zoning
code, in March of 2017. The position is not a Town employment

position and was “totally volunteer.” T II-204-205. After the
Buending lawsuit (in which Mrs. Fields was a Plaintiff) was
filed, concern was raised over her continued service on the
BOA. Specifically, at a Town Commission meeting on September
4, 2019, then-Commissioner (now-Mayor) David Will “noted that
a resident on the [BOA] has a lawsuit filed against the Town
and believes that this affects all of the residents, and it
is a conflict of interest.” T II-209. According to then-
Commissioner Will, “this had been brought to my attention by
one of the residents, and I thought, well, maybe this is
something that needs to be discussed.” T IV-171. According to
Mrs. Fields, who was in the audience at the meeting, the Town

Attorney advised the Commission that the Town Code provided
that the Commission had “the discretion to remove a person
[from a Town board] if it is in the Town’s best interests.”
Id.
Then-Mayor Nick Simons asked Mrs. Fields if she would
like to speak on her behalf. Mrs. Fields testified that in
response, she informed the Commission “if the Commission
wanted me to resign, then I would resign if they felt there
was a conflict of interest.” T II-209-210. According to Mrs.
Fields, Mayor Simons then polled each member of the
Commission, and all five noted a desire for Mrs. Fields to

resign. Id. at 210. Mayor Simons then stated “Mrs. Fields,”
to which Mrs. Fields responded “okay.” T II-227. As Mrs.
Fields was leaving, the Mayor asked Mrs. Fields to put her
resignation in writing. After consulting with her lawyer, Ms.
Fields refused to submit her resignation in writing. At the
Commission’s next meeting, the Mayor called for a vote to
remove Mrs. Fields from the BOA, which passed unanimously.
Plaintiffs then amended the complaint to include Ms. Fields's
claim for First Amendment retaliation.
IV. Conclusions of Law
A. Facial Taking
The Town contended in its pre-trial submissions that

considering the Eleventh Circuit’s Buending opinion (vacating
the summary judgment order which had conflated the facial and
as-applied takings questions), the only takings issue to be
tried was the as-applied claim, and the Town’s affirmative
defense of customary use. Nevertheless, inasmuch as the
Eleventh Circuit’s Buending opinion did not separately
address the facial takings claim, the Court has determined
that issue remains to be decided.
A facial challenge seeks to invalidate the legislation
itself and is the most difficult challenge to mount
successfully because it requires a plaintiff to show that no

set of circumstances exists under which the law would be
valid. United States v. Ruggiero, 291 F.3d 1281, 1285 (11th
Cir. 2015). The Florida Supreme Court agrees that “[t]o
succeed on a facial challenge, the challenger must
demonstrate that no set of circumstances exists in which the
statute can be constitutionally valid.” Fraternal Order of
Police, Miami Lodge 20 v. City of Miami, 243 So. 3d 894, 897
(Fla. 2018).
The “no set of circumstances” standard (often referred
to as the Salerno rule) has been clarified by the Eleventh
Circuit, which has noted that “the question that Salerno
requires us to answer is whether the statute fails the

relevant constitutional test.” Club Madonna Inc. v. City of
Miami Beach, 42 F.4th 1231, 1256 (11th Cir. 2022); see also
Young Israel of Tampa, Inc. v. Hillsborough Area Reg’l Transit
Auth., 89 F.4th 1337, 1350 (11th Cir. 2024) (identifying the
relevant constitutional standard and determining whether the
challenged provision at issue failed the test).
Thus, the facial challenge to some extent merges into
the as-applied challenge. Nevertheless, the Court will
address the facial challenge separately as it was separately
pled by Plaintiffs. As to that challenge, on motion of the
Town, the predecessor judge clarified the summary judgment

order by confirming his opinion that the Town’s Ordinance was
facially unconstitutional on June 6, 2018, the very day it
was adopted. (Buending Doc. ## 78, 81). The ensuing opinion
of the Eleventh Circuit not only vacated that finding but
remanded the case for trial to allow the Town to establish
customary use. Buending, 10 F.4th at 1135. The Town argues
that the Eleventh Circuit would not have vacated the summary
judgment order remanding the case to allow the Town to
establish customary use if it had agreed with the order’s
conclusion that the Ordinance was facially unconstitutional.
Nevertheless, the Court must identify the relevant
constitutional standard and determine whether the challenged

provision at issue fails the test. In this case, the Court
looks to the Takings Clause, which provides that government
shall not take private property for public use without just
compensation. The Ordinance does not purport to “take” the
portion of dry sand beach in the Town owned by Plaintiffs.
Rather, it purports to recognize and protect the customary
use rights of those residents who have gained, through custom,
the right to make certain uses of that privately-owned beach.
The Eleventh Circuit’s Buending opinion recognized that
under Florida law, if customary use is factually established,
there would be no taking:

In Reynolds v. County of Volusia, 659 So. 2d 1186 (Fla.
5th DCA 1995), the Fifth District Court of Appeal noted
that “the doctrine of customary usage of the sandy beach
areas of this state offer[ed] a potential . . . ground”
to affirm the ruling that there was no taking in the
case. Id. at 1190–91. The Fifth District Court of Appeal
reiterated the requirements of the customary use
doctrine, explaining that it “requires the courts to
ascertain in each case the degree of customary and
ancient use the beach has been subjected to and, in
addition, to balance whether the proposed use of the
land by the fee owners will interfere with such use
enjoyed by the public in the past.” Id. at 1190.

Buending, 10 F.4th at 1132. In Trepanier v. County of Volusia,
965 So. 2d 276 (Fla. 5th DCA 2007), the court addressed the
question of whether an application of the customary use
doctrine would affect a facial taking:
Finally, we agree with the trial court’s analysis of the
“takings” issue. If the law recognizes that the public
has a customary right to drive and park on Appellants’
property as an adjunct of its right to other recreational
uses of that property, as recognized in Tona–Rama, then
no takings claim can be made out.

Id. at 298 (emphasis added); see also Lucas v. South Carolina
Coastal Council, 505 U.S. 1003, 1027 (1992) (the state may
resist payment of compensation “if the logically antecedent
inquiry into the nature of the owner’s estate shows that the
proscribed use interests were not part of his title to begin
with.”).
Inasmuch as the question of what property rights are at
issue in a takings claim are driven by state, not federal
law, the Court notes that Florida law expressly recognizes
and allows for persons to gain a right of customary use over
privately-owned property. This right was first recognized as
being part of Florida law by the Florida Supreme Court in
City of Daytona Beach v. Tona-Rama, Inc., 294 So. 2d 73 (Fla.
1974), which adopted the doctrine of customary use into
Florida property law. Thereafter, it became part of the
background principles of Florida property law. The Court
agrees with the Town’s argument that it would be illogical
for this Court to conclude that the Florida Supreme Court
would have adopted a doctrine of property law (and indeed
apply that doctrine in the case to allow citizens to continue

accessing the beach at issue), if that doctrine would
constitute a facial taking.
The Court also notes that the Florida Legislature in
2018 adopted the doctrine of customary use into the Florida
Statutes via the adoption of Florida Statute § 163.035.4 That
statute allows customary use ordinances adopted during the
time the Town’s Ordinance came into effect to stand but, if
challenged, requires the jurisdiction to establish the
doctrine applies over the relevant beach area via an
affirmative defense. The Court also agrees that it would not
be logical for the Florida Legislature to adopt a statutory

4 The Court acknowledges that the Florida Second District
Court of Appeal has ruled that this statutory provision
(allowing an affirmative defense to a customary use
challenge) applies to the Town’s Ordinance in a pending action
in state court also challenging the Ordinance under state
takings law. See Dirty Duck 16004 LLC v. Town of Redington
Beach, 376 So.3d 774 (Fla. 2d DCA 2023).
scheme regarding local customary use regulations in the state
if such local customary use regulations were facial takings
under state law on the very day they are adopted.
Finally, the Town’s pre-trial brief aptly noted an order
in the state court case Dirty Duck 16004 LLC, et al. v.
Redington Beach, Case No. 21-3526-CI-19, pending in the Sixth
Circuit Court for Pinellas County. That case also challenges

the Defendant’s Ordinance on takings grounds. The Court notes
that in its February 3, 2023 order granting defendant’s
dispositive motion for judgment on the pleadings as to Counts
I, II, III, IV, and VII of plaintiffs’ amended complaint, the
Circuit Court Judge ruled, as to Count IV in that litigation
(a facial takings claim regarding the Ordinance) that the
Ordinance was not facially unconstitutional, and therefore
the Circuit Court granted judgment to the Town as to that
count. While the opinion of a state trial court has no binding
precedential effect on this Court, the Court acknowledges and
finds persuasive the order analyzing the same Ordinance which

is at issue in these consolidated cases.
In light of the foregoing, the Court finds that the
adoption of the Town’s Ordinance did not effect a facial
violation of the state or federal Takings Clauses because the
protection and regulation of customary use of private
property in Florida is authorized and, when the underlying
customary uses are proven, such protection or regulation does
not constitute a taking. As the controlling Florida authority
confirms: “If the law recognizes that the public has a
customary right to [make certain uses of] Appellants’
property as an adjunct of its right to other recreational
uses of that property, as recognized in Tona–Rama, then no

takings claim can be made out.” Trepanier, 965 So. 2d at 298.
B. As-Applied Taking & Customary Use Defense
Florida Statute § 163.035(4) authorizes a local
government customary use ordinance adopted between January 2,
2016, and July 1, 2018, to continue in effect but, “in any
proceeding challenging” the ordinance, the local government
may “rais[e] customary use as an affirmative defense.” Fla.
Stat. § 163.035(4). Plaintiffs’ consolidated cases make such
a challenge, and the Town asserted customary use as an
affirmative defense in response. The Town therefore bears the
burden of proof as to its affirmative defense.

1. Standard of Proof
Prior to discussing the merits of the Town’s defense,
the Court will address the correct standard of proof, as this
was disputed by the parties at the pre-trial stage. While
Plaintiffs argued that the Town’s evidentiary standard should
be a heightened standard, it did not cite to the Court any
controlling authority placing that burden on the Town. The
Town, for its part, argues that its affirmative defense of
customary use must be proven by the preponderance of the
evidence. “A preponderance of the evidence is evidence which
is more convincing than the evidence offered in opposition to
it.” Metro. Stevedore Co. v. Rambo, 521 U.S. 121, 137 n.9

(1997) (quoting Greenwich Collieries v. Dir., OWCP, 990 F.2d
730, 736 (3d Cir. 1993)) (cleaned up). It “simply requires
the trier of fact to believe that the existence of a fact is
more probable than its nonexistence.” Concrete Pipe, 508 U.S.
at 622 (quotation marks omitted). Alternatively phrased, it
is proof that persuades the trier of fact that a proposition
“is more likely true than not true.” United States v.
Deleveaux, 205 F.3d 1292, 1296 n.3 (11th Cir. 2000) (quoting
a jury instruction that was upheld); see also 11th Cir.
Pattern Civ. Jury Instr. 1.1 (stating that the standard of
proof by a preponderance of the evidence means the party with

the burden “must prove that, in light of all the evidence,
what [that party] claims is more likely true than not”).
Constitutional claims raised by way of 42 U.S.C. § 1983
(including takings claims) are routinely analyzed under this
standard. The Court has not independently found any
controlling authority holding that another standard of proof
applies as to customary use. Thus, the Court applies the
preponderance of the evidence standard.5
2. Florida Law on Customary Use
Whether the Town may maintain its Ordinance recognizing
and regulating the pre-existing rights of Town residents and
visitors to make certain recreational uses of the privately-

owned portions of dry sand beach turns on whether the Town
established at trial that such uses have been “ancient,
reasonable, without interruption and free from dispute, [so
that] such use, as a matter of custom, should not be
interfered with by the owner.” Tona-Rama, 294 So. 2d at 78.
As the Eleventh Circuit noted in Buending, while the
Plaintiffs purchased their respective properties for
substantial sums, they, “of course, made these purchases
against the backdrop of state property law principles.”
Buending, 10 F.4th at 1128. There is no federal law of
property. Therefore, to resolve whether Plaintiffs have a

property interest which has been “taken” and whether the Town
has shown customary use over the dry sand beach in dispute,

5 Even if a more stringent “clear and convincing” evidence
standard applied, the Court would still find that the Town
had proved their customary use defense.
the Court must look to Florida law. See Lucas, 505 U.S. at
1030 (noting that the federal courts must resort to “existing
rules or understandings that stem from an independent source
such as state law” to define the range of interests that
qualify for protection as “property” under the Fifth and
Fourteenth Amendments). As the Buending court also noted: “To
resolve whether the Town has shown customary use over the dry

sand beach in dispute, we look to Florida law.” Buending, 10
F.4th at 1131.
The Florida Constitution gives the public a right of
access along the beaches and shorelines of the state, below
the “mean high water line[]” Fla. Const. art. X, § 11. The
Eleventh Circuit characterized this area as “otherwise known
as the wet sand beach.” Buending, 10 F.4th at 1128. Florida
Statute § 187.201(8)(b)(2) also recognizes the public’s
reasonable access to beaches, stating as part of the State
Comprehensive Plan that it is a state goal to “[e]nsure the
public’s right to reasonable access to beaches.” Fla. Stat.

§ 187.201(8)(b)(2). As noted, Florida law also recognizes
customary use. Customary use finds its origins in English
common law. William Blackstone described the “unwritten laws
of England,” including the “particular customs, or laws which
affect only the inhabitants of particular districts.” 1
William Blackstone, Commentaries on the Laws of England, at
*74. This was reflected in court decisions recognizing that,
for instance, the inhabitants of a parish could place a
maypole on another’s property and dance around it, Hall v.
Nottingham, 1 Ex. D. 1 (Eng. 1875), and that parish
inhabitants could play games and sports on another’s property
because of established custom, Fitch v. Rawling, 2 H. Bl.

393, 126 Eng. Rep. 614 (C.P. 1795). English common law has
long recognized use of another’s property based on
longstanding customs.
The customary use at issue in these consolidated cases
is the public’s access to the Town’s dry sand beaches to
engage in the activities enumerated in the Ordinance. The
Florida Supreme Court first articulated the customary use
doctrine in 1974. Tona-Rama, 294 So. 2d at 78. In Tona-Rama,
the Florida Supreme Court explained that the public could
continue using the dry sand area adjoining a tourist
attraction if such recreational use were “ancient,

reasonable, without interruption and free from dispute.” Id.
In describing the rationale underlying customary use, the
Florida Supreme Court wrote:
No part of Florida is more exclusively hers, nor more
properly utilized by her people than her beaches. And
the right of the public of access to, and enjoyment of,
Florida’s oceans and beaches has long been recognized by
this Court. . . . The beaches of Florida are of such a
character as to use and potential development as to
require separate consideration from other lands with
respect to the elements and consequences of title. The
sandy portion of the beaches are of no use for farming,
grazing, timber production, or residency—the traditional
uses of land—but has served as a thoroughfare and haven
for fishermen and bathers, as well as a place of
recreation for the public. The interest and rights of
the public to the full use of the beaches should be
protected.

Id. at 75, 77. Thus, Florida law allows for localities to
recognize the public’s customary use of their beaches under
the English common law tradition of the doctrine.
Florida’s intermediate appellate courts have also
addressed the doctrine after Tona-Rama. In Reynolds v. County
of Volusia, 659 So. 2d 1186 (Fla. 5th DCA 1995), the Fifth
District Court of Appeal noted that “the doctrine of customary
usage of the sandy beach areas of this state offer[ed] a
potential . . . ground” to affirm the ruling that there was
no taking in the case. Id. at 1190–91. The Reynolds court
reiterated the requirements of the customary use doctrine,
explaining that it “requires the courts to ascertain in each
case the degree of customary and ancient use the beach has
been subjected to and, in addition, to balance whether the
proposed use of the land by the fee owners will interfere
with such use enjoyed by the public in the past.” Id. at 1190.
But because it determined the title at issue did not include
the dry sand beach, the court did not have to reach the issue
of whether customary use existed in the case. Id. at 1190–
91.
Later, in Trepanier, the Fifth DCA again addressed the
customary use doctrine. 965 So. 2d at 290. In that case, the
court indicated that to establish a customary right the local

government need not prove customary use of the property
owners’ specific parcels of property. Id. Instead, the court
read Tona-Rama to “require proof that the general area of the
beach where [the private] property is located has customarily
been put to such use.” Id. (emphasis added). Therefore, in
these consolidated cases, the Town did not have the burden of
proving that the public specifically made customary use of
each privately-owned parcel of beach in the Town. As the
Buending court observed:
Recall that the Town has a total area of only 1.3 square
miles, 0.4 square miles of which is land and 0.9 square
miles is water. The question of customary use is a
localized inquiry, in this case implicating fairly
limited stretches of beachfront. The Town may establish
customary use by showing that the general area of the
beaches has been subject to customary use that is
ancient, reasonable, without interruption and free from
dispute.

Buending, 10 F.4th at 1133 (footnote and internal citations
and quotations omitted).
Important to the question of whether the doctrine
constitutes a taking, the Florida Supreme Court has noted
that, as a matter of Florida law, the “right of customary use
of the dry sand area of the beaches by the public does not
create any interest in the land itself. Although this right
of use cannot be revoked by the landowner, it is subject to
appropriate governmental regulation and may be abandoned by

the public.” Tona-Rama, 294 So. 2d at 78.
In short, pursuant to Florida Statutes § 163.035(2) and
(4), the Town may keep its Ordinance in effect if the Court
finds that the Town’s evidence establishes by a preponderance
of the evidence that the Town’s residents and visitors have
gained, by way of customary use, the right to use the
privately-owned portions of the dry sand beach in the Town.
3. Analysis
With that background, the Court will now address the
four elements of customary use:
(a) Ancient

Plaintiffs have consistently argued in this case that
the Ordinance fails to define “ancient.” However, neither the
statute nor Tona-Rama defined the term. Plaintiffs have
suggested that the public’s use must be ancient to the point
of the coronation of Richard I. But the doctrine’s use of the
word is not so exacting. As Trepanier observed, the phrase
“ancient use” is “an awkward concept in a new world society.”
965 So. 2d at 293 n.22. Although no Florida court has parsed
the question, guidance exists in the period reviewed in Tona-
Rama. In that case, the First District Court of Appeal
described the record:
A fair and objective consideration of all the evidence
before the trial court establishes the following
undisputed facts. For more than twenty years prior to
the institution of this action, the general public
visiting the ocean beach area had actually,
continuously, and uninterruptedly used and enjoyed the
soft sand area of the beach involved in this proceeding
as a thoroughfare, for sunbathing, for picnicking,
frolicking, running of dune buggies, parking, and
generally as a recreation area and a playground. . . .
The City . . . has constantly policed the area for the
purpose of keeping it clear of trash and rubbish and for
preserving order among the users of the beach . . . and
has otherwise exercised the police power . . . over the
area for the convenience, comfort and general welfare of
persons using and enjoying the beach area.

City of Daytona Beach v. Tona–Rama, Inc., 271 So. 2d 765, 766
(Fla. 1st DCA 1972) (emphasis added). So, in later deciding
that the defendant had succeeded on its customary use defense,
the Florida Supreme Court necessarily determined that the
evidence of the past twenty years sufficiently proved the
“ancient” requirement, even without the benefit of a history
expert. See Tona-Rama, 294 So. 2d at 78 (“The general public
may continue to use the dry sand area for their usual
recreational activities, not because the public has any
interest in the land itself, but because of a right gained
through custom to use this particular area of the beach as
they have without dispute and without interruption for many
years.”). If the Tona-Rama court, which had just recognized
a doctrine using the “ancient” standard, felt a twenty-year
history was not ancient enough, it would have so ruled.

Instead, it applied the doctrine to recognize that customary
use had been established in that case on a history of just
over twenty years. In this case, the Town’s witnesses provided
testimony regarding their use, and the public’s use of the
dry sand beach in the Town, with many going back over twenty
years, and some going back to the 1950s. Indeed, the Court
heard testimony, unrebutted by Plaintiffs, that some families
are now on their third generation of familial use of the dry
sand beach in the Town.
True, the Town did not call witnesses who could speak to
how the beach was used as of the date the Town was

incorporated and into the 1940s (perhaps because such persons
are no longer living). The Town did offer testimony, however,
from its history expert Dr. Knetsch regarding the earliest
formation of the Town and certain facts which suggested public
uses of the beach even at that time. Plaintiffs did not call
any historian of their own to provide any contrary evidence.
Plaintiffs offer authorities from outside of Florida to
suggest the Town’s burden on the “ancient” element should
look far longer back in time. But what testimony there was at
trial suggests that the portion of land which has now become
Redington Beach was not occupied or even accessible (at least

by car) until Mr. Redington began development efforts and
others built a road connecting this land to the mainland.
Asked during closing statements to provide the best caselaw
on an appropriate lookback period, counsel for Plaintiffs
suggested a case looking back one hundred years. The Town’s
live testimony took the court back seventy years.
Guided by what Florida legal authorities exist, the
Court is satisfied that the evidence provided by the Town
establishes the “ancient” element of the customary use
doctrine as applied by the Florida courts.
(b) Reasonable

Under Florida law, if the legislative body does not
define the word “reasonable,” then “[t]he fact-finder must
construe the word ‘reasonable.’” State Farm Mut. Auto. Ins.
Co. v. Sestile, 821 So. 2d 1244, 1246 (Fla. 2d DCA 2002); see
also Donovan v. State Farm Mut. Auto. Ins. Co., 560 So. 2d
330, 331 (Fla. 4th DCA 1990) (defining what is “reasonable”
and “necessary” as a question of fact for the jury).
“Reasonable” is generally understood and defined in
dictionaries to mean rational, appropriate, ordinary, or
usual in the circumstances. The Court utilizes this generally
understood definition.
In this case, the Ordinance recognizes nine activities.

They are traversing the beach, sitting on the sand, in a beach
chair, or on a beach towel or blanket, using a beach umbrella
that is seven feet or less in diameter, sunbathing,
picnicking, fishing, swimming or surfing off the beach,
placement of surfing or fishing equipment for personal use,
and building sand creations unless prohibited by the Town’s
sea turtle protection code. The Ordinance also expressly
prohibits use of tobacco, possession of animals, and the
erection or use of tents on the beach. The Ordinance also
prohibits a member of the public from utilizing the beach
within a fifteen-foot buffer zone located seaward from the

toe of the dune or from any privately-owned permanent
habitable structure that is located on, or adjacent to, the
dry sand areas of the beach, whichever is more seaward.
The Court finds that the limited uses protected by the
Ordinance, such as sitting on or traversing the beach,
creating sandcastles, picnicking, and using a seven-foot
diameter umbrella for shade are all quintessentially common
and reasonable uses of beaches in general, and of the Town’s
beach in this case. Likewise, using the dry sand beach while
fishing at water’s edge, surfing, or swimming (which of course
are performed in the water) are also common and, in this
setting, are reasonable as they have been historically

practiced. The Town’s witnesses consistently testified that
they were respectful of the upland owners in that if they
brought food and beverages they would clean up after
themselves. They consistently testified that, even before the
Ordinance, they saw what they perceived as the border between
the ‘public’ beach and private property as the owner’s
seawall. Thus, the Town witnesses testified that they did not
go beyond the seawall, and most stated they set themselves up
well into the sand away from the seawall. And as to activities
such as surfing (which the Court notes would be inclusive of
what some Town witnesses called “boogie-boarding”) and

fishing, no testimony was offered that the parts of these
activities taking place on the dry sand beach are somehow
unreasonable.
For their part, Plaintiffs did not offer evidence to
counter the reasonableness of these approved uses, other than
as related to their argument that customary use does not apply
and that they should be able to exclude all others from their
land given their ownership. Of those examples offered in
Plaintiffs’ respective amended complaints and discussed at
trial (such as individuals engaging in sexual intercourse or
use of drugs or building of fires), the Ordinance does not
authorize these activities. Nor does the Ordinance preclude

Plaintiffs from summoning law enforcement or fire department
authorities to address such activities. And the Town agrees
that, apart from the customary uses set forth in the
Ordinance, Gulf front owners are free to exclude from their
properties those who engage in other activities either
prohibited by, or not authorized by, the Ordinance. This
regulatory scheme sets a reasonable balance between
attempting to protect the customary use rights of Town
residents and visitors recognized by the Ordinance, and the
private property rights of owners such as Plaintiffs.
Indeed, the reasonableness of the customary use rights

recognized and regulated by the Ordinance may also be found
in the fact that the use of the beach in the Town did not
significantly change after the Ordinance’s adoption.
Plaintiffs uniformly testified that the beach was quiet and
that no one seemed to be using it. Mrs. Fields confirmed that
the public “really didn’t go behind our house.” T II-190.
And, when Plaintiffs testified to summoning the Sheriff on an
issue, it was for persons engaging in activities not on the
Ordinance’s list of recognized customary uses.
(c) Without Interruption
Again, absent a statutory definition, it is for the trier
of fact to determine how the phrase “without interruption”

will apply to the Town’s affirmative defense. In this case,
the Town’s witnesses all testified that, while intensity or
use may go up or down given the day of the week, or on
holidays, or given weather conditions, over time, the beach
in the Town (including parts of the dry sand beach which are
privately owned) was regular. For instance, Mr. Steagall
testified that these uses were “very consistent.” T III-33.
Mr. Scarr testified that since he’s lived in the Town in 1956,
his and his family’s uses of the beach have been consistent,
and that other residents and visitors’ uses have also been
“consistent over time.” T III-75.

The Court finds that the Town’s witnesses’ testimony
about the regularity and consistency of their uses of the
beach in the Town, along with their observations of others
using the beach regularly and consistently, was not
persuasively rebutted by Plaintiffs. This testimony satisfies
the “without interruption” element of the customary use
doctrine.
(d) Free from Dispute
The Florida doctrine of customary use does not impose an
adversity requirement, and the doctrine applies even where
the owner has given actual or implicit permission. See Tona-
Rama, 294 So. 2d at 76-78 (contrasting prescriptive easement,

which has an adversity requirement, with customary use, which
does not). In this case, the Eleventh Circuit’s opinion in
Buending noted that the predecessor judge had dismissed
evidence showing public use simply because the beachgoers
could have been “invitees of the property owners.” But the
Buending court explained that pictures of large town
gatherings on the dry sandy areas of the beach were not
irrelevant for that reason. See Buending, 10 F.4th at 1134
(“[T]he Florida doctrine of customary use does not impose an
adversity requirement, and the doctrine applies even where
the owner has given actual or implicit permission. . . .

[P]ictures of large town gatherings on the dry sandy areas of
the beach are not irrelevant to determining customary use
just because a property owner may have attended the gathering
or because the attendees might have had permission to be
there.” (citations omitted)). Therefore, the various
photographs provided to the Court, along with the testimony
of Town-sponsored or POA-sponsored events that may have
occurred with the acquiescence of one or more beachfront
owners is still relevant to establishing that the uses were
free from dispute.
Apart from such events, the Town’s witnesses uniformly
testified that, besides some confrontations with Plaintiff

Shawn Moore (whose home was directly adjacent to Beach Park),
beachfront owners simply did not express any opposition to
how the dry sand beach beyond their seawalls was used by the
public. For instance, Mr. Steagall testified that he was never
confronted or chased away from the beach while using it during
the entire time he lived in the Town. T III-36. According to
Mr. Steagall, “this is a very friendly beach. The people know
each other.” T III-35.
Mr. Scarr testified that in his 68 years (interrupted
only by his college years) residing in Redington Beach, no
beachfront owner had ever confronted him and directed him to

leave. T III-71. And Mr. Scarr’s daughter Kelly Scarr Johnson
testified, “I never knew anything different. Learning about
this trial, I guess, was the first time it ever crossed my
mind that that was not public beach.” T III-107.
When asked to discuss the issue of dispute, Mrs. Scarr
Johnson, who grew up in Town and still brings her kids back
to her parents’ home today, testified homeowners would “not
once” ever come out and shoo her away:
We feel like it’s our beach. There’s a pride there to
take care of it. It’s a special place, you know, for the
residents and their guests.

T III-110. She also recounted, as an example of the mindset
of longtime residents, that she and her family did “a small
wedding” for her aunt on the beach once, and that after the
wedding, she and her mother were cleaning up the sand when a
beachfront owner came out. The owner was “super kind” to the
Scarrs and thanked them for cleaning. But Mrs. Scarr Johnson
thought that “was kind of odd, because I always thought that
wasn’t private property.” T III-115-116. But apart from that
non-confrontational exchange, when the Scarrs had set up a
small wedding in what apparently was the private sand of an
owner, that was “the only interaction I think I’ve ever had
with any homeowner on the beach.” Id.
Mrs. Steagall testified that in her over three decades
of residency in the Town, as she and her family and guests
went “all the way from Madeira Beach up to North Redington,”
she was “never” asked to leave the beach by any homeowner
and, “in fact, a lot of the property owners on the beach would
be out with us and speaking with us.” T III-122.
In addition to evidence of the acquiescence of owners
over time, the Court also heard testimony of the actual
perceptions of those Town residents (and former child
residents who have since moved but still visit). They
testified as to what they actually thought and felt about the

status of the dry sand beach waterward of the residents’
seawalls. Mr. Steagall testified:
Well, we’ve always been using it. I know at one time I
thought everyone had a public easement, because
everybody’s been doing it openly and continuously… And
I remembered that from a longtime ago in school. It
shocked me that someone even did not want the residents
to come in there and not utilize the beach because it
has always been utilized by the families and by the
children and people jogging and exercising, playing
sports.

T III-37. Barry Scarr testified, when asked how he came to
understand that it was acceptable for him to be on the beach:
I don’t know that . . . I ever understood anything,
because nothing ever happened. So I don’t even know what
this is about. But in my whole life, there was never an
issue about anything with the beach, or the sand,
nothing, ever. Not one word or one opposition. Nothing
until somewhat recently, in the last couple of years.

T III-68.
Former POA president Sulewski testified, when asked
about being on private property during a POA event or when he
was personally using the beach:
We never thought about it. Just understood that the beach
was open to the public, including the dry sand, yes. .
. . . And we did respect not going too close to the
property line. Some people had bushes in front, so we
would never penetrate that area.

T III-139. Clearly, residents and visitors came to view the
“property line” of the beachfront owners as being the seawall.
As inconsistent with the owners’ deeds as that may be, the
lack of confrontation over non-owner use of the privately-
owned dry sand over such a long period supports a finding
that such use was free from dispute.
Mayor Will described his view of how residents viewed
their right to go onto the beach from his perspective and
experience:
Well, when I first came down here I didn’t know anything
about any of that stuff, whether there was a mean high
water line or not. So we utilized the areas from the
seawall into the water. That to us was considered the
beach. . . . When you would walk down one of the beach
accesses in between the houses . . . then when it hits
the sand, when you look to your left and to our right,
there are seawalls. So when you are standing on the sand
– say the floor here is the sand – the seawall is about
this high or so. It’s about three or four feet of this.
So you look left and right. And then on top of a lot of
those seawalls there’s a fence. So on the side of that
fence, there’s grass and they have their palm trees and
things like that. So it’s an obvious distinction that,
here’s the beach and here is the seawall and somebody’s
yard.

T IV-146-47. Given that’s how he and other residents perceived
“the beach” and came to view “the beach” as not being part of
the adjoining home’s parcel, Mayor Will testified that going
onto the dry sand beach “was always done.” Id. at 147. “You
go out there and there’s other people out there. We would do
this on a regular basis. And the beach was always thought of
as a public area to access.” Id.
In sum, the Town’s witnesses, whose testimony the Court
credits after personally observing their demeanors during
trial, established that until certain Plaintiffs confronted
some Town residents to “get off their land” after the
Ordinance was adopted, the use of the beach was free from
dispute.
C. Conclusion as to Takings Claims
The Court finds that the evidence provided by the Town
at trial substantially surpassed the quantum of proof
necessary to establish its affirmative defense. Therefore,
the Court finds that the Town has proven the customary use of
the privately-owned dry sand beach in the Town, and that those
uses are consistent with the limited permitted uses set out
in the Ordinance. Further, the Town has proven that this
customary use has been by both Town residents and those who
may visit the Town either as vacation renters or guests of
residents. Thus, Plaintiffs’ takings claims (Counts I and II)
fail.
D. First Amendment Retaliation Claim
In vacating the predecessor judge’s grant of summary
judgment to Mrs. Fields on her First Amendment retaliation

claim, the Buending court characterized Mrs. Fields’ status
as a Board of Adjustment (“BOA”) member as akin to that of an
“employee.” It then indicated that the Court erred in granting
summary judgment because there was conflicting evidence as to
whether Mrs. Fields orally resigned at the Commission
meeting. Buending, 10 F.4th at 1135. At trial, Mrs. Fields
continued to argue that she did not resign, and the Town
continued to argue both that she did resign. The Town further
argued that she should not even be treated under the First
Amendment retaliation caselaw related to public employees
because she was a volunteer member of a Town quasi-judicial

board.
The Court, however, need not address the parties’
dispute over the applicability of the Pickering6 balancing

6 Pickering v. Bd. of Ed. of Twp. High Sch. Dist. 205, Will
Cnty., 391 U.S. 563, 566 (1968).
test to this case. Regardless of whether Pickering applies,
Mrs. Fields’ claim fails because she orally and voluntarily
resigned.
In Rodriguez v. City of Doral, 863 F.3d 1343 (11th Cir.
2017), the Eleventh Circuit confirmed that the “appropriate
standard for determining the voluntariness of a public
employee’s resignation where a claim of First Amendment

retaliation is involved” is the same “test for voluntariness
that applies in the context of due-process claims.” Id. at
1352. Under the due-process voluntariness framework, a
resignation is presumed voluntary unless the employee points
to “sufficient evidence to establish that the resignation was
involuntarily extracted.” Hargray v. City of Hallandale, 57
F.3d 1560, 1568 (11th Cir. 1995). Involuntariness can be
found: “(1) where the employer forces the resignation by
coercion or duress; or (2) where the employer obtains the
resignation by deceiving or misrepresenting a material fact
to the employee.” Id. (citations omitted).

Claims of duress and coercion must take into account
“whether, under the totality of the circumstances, [the
employer’s] conduct in obtaining [a] resignation deprived
[the employee] of free will in choosing to resign.” Rodriguez,
863 F.3d at 1352. A non-exhaustive list of five factors guides
the analysis into this inquiry:
(1) whether the employee was given some alternative to
resignation; (2) whether the employee understood the
nature of the choice [she] was given; (3) whether the
employee was given a reasonable time in which to choose;
(4) whether the employee was permitted to select the
effective date of the resignation; and (5) whether the
employee had the advice of counsel.

Id. (citations omitted).
Here, Mrs. Fields was present at the Commission meeting
to hear the discussion, was offered an opportunity to react,
and voluntarily stated she was fine with resigning if the
Commission desired. Mrs. Fields was not compelled to make her
offer. She could have sat quietly to see where the discussion
went. She could have asked to speak to counsel first. She
could have stated she would not resign and demanded removal.
Yet she opted to resign if the Commission so desired. The
record at trial does not support a claim that Mrs. Fields, an
educated, successful professional, did not understand the
nature of her options. While the Commission did not offer
Mrs. Fields time to choose a course of action, that is because
she told the Commissioners at the meeting as it was
progressing that if they wished her to resign, she would. It
would be illogical thereafter for Commissioners to not simply
poll themselves for an answer, as they did.
As for being able to select a date, because Mrs. Fields
unconditionally “accepted” the Commission’s resignation
desire in open session, it was effective at that time.7 While
Mrs. Fields did indicate at trial that she felt under
“pressure” to resign, the audio of the meeting played at trial

does not reveal such pressure. The record developed at trial
does not reveal facts sufficient to overcome the voluntary
nature of her resignation offer. See Hargray, 57 F.3d at 1570
(employee under criminal investigation who made resignation
decision at police station under time pressure and without
counsel was not coerced where he was free to leave, knew the
charges against him, never asked for more time or to speak
with his supervisor or an attorney, and the meeting transcript
revealed a “casual atmosphere”).
Mrs. Fields did testify that she didn’t volunteer “per
se” because she felt she was “bullied into saying, after they

all voted, yes, you need to resign. It wasn’t till I got home

7 The effective date of the resignation was the date of the
Commission meeting. Smith v. Brantley, 400 So. 2d 443, 444
(Fla. 1981) (“a public officer’s resignation, stated to be
effective immediately, is effective upon submission to the
proper authority”).
I’m like, what the heck happened?” T II-212. But the audio
recording admitted into the record and played in court
revealed no such bullying. Indeed, after the Commission’s
poll of its members was completed, the only words spoken by
any Commissioner were those of Mayor Simons. And all he did
was to say, “Mrs. Fields” in the manner that he was giving
her back the floor. Mrs. Fields did not respond that she was

being bullied. All she stated was, “okay.” And Mrs. Fields
admitted at trial that it was a “true statement” that the
audio recording confirmed that her words to the Commission
were: “If you want me to resign, I will be more than happy
to.” T II-226. The Court concludes, based on its experience
and common sense, that this sequence of events regarding a
voluntary, unpaid position did not constitute bullying. The
fact that Mrs. Fields then went home and re-considered her
resignation is not relevant because, by that point, she had
already resigned.
Mrs. Fields notes that Mayor Simons asked her to put her

resignation in writing. She then attempts to argue that her
subsequent refusal to do so in some way negated her
resignation. But the fact remains that at the September 4,
2019 meeting, she offered to resign if the Commission desired
it, and the Commission expressed that it did desire it, and
that she accepted this with an “okay.” Indeed, what Mrs.
Fields asks the Court to overlook is that Mayor Simons asked
her to put her resignation in writing. In sum, Mayor Simons
(not the full Commission) asked Mrs. Fields to create a
written version re-stating what Mrs. Fields had already just
verbally done: resign.
Further, while Mayor Simons asked Mrs. Fields to put her

resignation in writing, Mrs. Fields did not, in that moment,
note that she was still thinking about the matter. Any
reasonable observer present at the Commission meeting that
evening would have left with the understanding that Mrs.
Fields had resigned from the BOA. The fact that the Mayor,
upon not receiving a subsequent written resignation, asked
the Commission at its next meeting to remove Mrs. Fields from
the BOA does not negate that fact that Mrs. Fields had already
resigned in open session, and under Florida law, that
resignation was effective upon being submitted to the
appointing authority. Indeed, other members of the Commission

at the time did not see the need for this action since they
felt Mrs. Fields had already resigned. For instance, then
Commissioner Fred Steiermann testified that that in his view,
Mrs. Fields “resigned, flat out, boom, resigned.” T VI-71,
and that when Fields pronounced her resignation at the
meeting, he considered it final, “guaranteed.” Id. at 72.
Now-Mayor Will agreed that, “in that moment” Fields had
resigned. T IV-170.
Again, the Court listened at trial to the audio
recording, through which the Court was able to assess the
tone and context of the September 4th meeting. Based on this
review of the audio, the Court finds that Mrs. Fields’

resignation was completed at the meeting. The resignation was
automatic upon her offer to resign depending on the
Commissioners’ thoughts and her immediate acceptance of the
Commissioners’ opinions that she should resign. Despite
Plaintiffs’ argument or some equivocal testimony at trial, it
was clear to the Court that no confirmatory resignation letter
was required to effectuate the resignation. Mrs. Fields’ oral
resignation at the meeting was both voluntary and final.
Finally, while Fields testified that she felt she
performed well on the BOA and could have handled her position
during the litigation, the Commission had a valid concern

over her ongoing service. The BOA is charged with applying
the Town’s adopted land use policies and Mrs. Fields was then
embroiled in a public suit over a land use matter which
impacted the ability of the vast majority of Town residents
to enjoy the Town’s beaches. See Carpenter v. University of
Ala. Health Services Foundation PC, 773 F. App’x 507 (11th
Cir. 2019) (noting that “good cause will exist so long as the
employer had prima facie evidence that an arguable basis for
discharge existed” (citation and internal quotation marks
omitted)); Christie v. United States, 518 F.2d 584, 588 (Ct.
Cl. 1975) (“This court has repeatedly upheld the
voluntariness of resignations where they were submitted to

avoid threatened termination for cause.”).
Based on the foregoing, the Court finds that Mrs. Fields
did voluntarily resign at the Commission meeting. Her words
were unequivocal that if the Commission desired her to resign,
she would. The Commission then polled itself and each member
indicated in the affirmative.
Because Mrs. Fields resigned from her position on the
BOA, and no exception to the voluntary nature of the
resignation applies, she did not suffer an “adverse action”
under either the Pickering framework or the political loyalty
cases framework. Therefore, the Town prevails as to Mrs.

Fields’ First Amendment retaliation claim.
V. Conclusion
The Town has now prevailed on all claims presented at
trial. A judgment will be entered consistent with this Order
and prior orders of the Court related to the other Counts of
the respective Seconded Amended Complaints in these
consolidated cases.
DONE and ORDERED in Chambers in Tampa, Florida, this
12th day of August, 2024.

bine In. Munley Cred
VIRGINIA M. HERNANDEZ’"COVINGTON
UNITED STATES DISTRICT JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10642646. Public record. Not legal advice.