Buending v. Town of Redington Beach

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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