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Law360 (April 20, 2020, 3:04 PM EDT) -- A Florida federal judge has refused to block a Walton County ordinance barring use of private beaches because of the COVID-19 pandemic, ruling the property owners challenging the law — which include former Arkansas Gov. Mike Huckabee — have not shown they are suffering irreparable injury.
U.S. District Judge Roger Vinson said Friday that the property owners, who argue they should be able to use their property that extends to the mean high water line of the Gulf of Mexico, have not satisfied any of the requirements for the preliminary injunction they requested to block implementation of restrictions imposed April 2 that make it unlawful for any person to enter the county's beaches.
They're unlikely to succeed on the merits of their suit, given that it is "highly likely" the county has the authority to implement these measures in order to address the COVID-19 emergency, the judge said.
"Whatever injury they sustain in not being able to fully access the beach and water behind their homes is temporary and relatively minimal compared to the potential harms that may result if there is increased exposure to this communicable virus," Judge Vinson said.
The judge added that the plaintiffs are not the only people whose property rights have been curtailed during the pandemic.
The property owners filed suit April 6 in Pensacola, asking the court to throw out the Walton County Board of County Commissioners' April 2 amendment to a March 19 ordinance that made it unlawful for any person to enter the county's beaches.
They say the changes, which tightened restrictions on the public's use of county beaches to cover "any person," were adopted despite previous statements from the county attorney that the county commission had no authority "to keep beachfront property owners from using their private property."
Officials from the sheriff's office, code enforcement department and South Walton Fire District have been patrolling and occupying the private property and making threats of fines of up to $500 and up to 60 days in jail to property owners and their families, the complaint says.
The property owners argue the restrictions conflict with two executive orders issued by Florida Gov. Ron DeSantis, pointing to language in an April 1 executive order he issued that said, "This order shall supersede any conflicting official action or order issued by local officials in response to COVID-19."
After issuing the April 1 "Stay at Home" order, the governor was later quoted in several news reports saying his order established minimum standards and that local governments can "go beyond what I've done if they want to restrict access to certain areas."
Judge Vinson rejected the property owners' argument Friday, saying the ordinance is consistent with the governor's executive order.
While the ordinance's purported purpose is to "prevent the spread of COVID-19," the complaint contends that it has the opposite effect, forcing family members into confined spaces in their homes or to use public areas closer to other people who may be infected. In contrast, the owners say there is plenty of room on their beach parcels to comply with social distancing guidelines and they have followed instructions not to have a group of more than 10 people together.
"In reality, the purpose of the amended ordinance is to make enforcement easier for the county and its officials," the owners said. "It is easier if no one is allowed on the beach rather than enforcement officials having to distinguish between property owners and non-property owners. As such, the amended ordinance is arbitrary, capricious and invalid."
Walton County spokesman Louis Svehla told Law360 that the county respects the decision by the judge and "will continue to move forward as we have."
An attorney for the property owners did not respond to a request for comment Monday.
The plaintiffs are represented by D. Kent Safriet, Joseph A. Brown, Edward M. Wenger and Kristen C. Diot of Hopping Green & Sams PA.
The county is represented by William G. Warner, Timothy M. Warner and Eric A. Krebs of Warner Law Firm PA.
The case is Dodero et al. v. Walton County et al., case number 3:20-cv-05358, in the U.S. District Court for the Northern District of Florida.
--Additional reporting by Nathan Hale. Editing by Abbie Sarfo.
For a reprint of this article, please contact reprints@law360.com.
