Local Policy Digest: Customer Use Disputes, Drug Offenders, and Illegal Fireworks

MultiState's Local Policy Digest explores the top legislative developments from municipalities across the U.S.

Controversial Florida law banning local customary use ordinances takes effect. A controversial new state law barring local governments from independently enacting customary use ordinances for beachfront properties went into effect on Sunday. Customary use is a common law term for the process whereby a longstanding custom of public usage dictates policy regarding public access to property. In this case, Florida cities and towns could enact customary use ordinances to allow continued public access to portions of beach property with a longstanding history of public use, even if the property was part of a private plot.

State lawmakers passed a law (FL HB 631) in March that stripped localities of this authority, allocated it to the courts, and incorporated a new set of procedures that require local governments to establish a history of customary use that would warrant continued public access.

State Senator Kathleen Passidomo, who authored an amendment to the bill shortly before its passage, likened the procedure to existing measures in place for building roads, arguing that “even when a public benefit results, private property should never be 'taken' through the creation of a local ordinance.”

Although the law applies to local action taken after July 1, all customary use ordinances in effect before the law's effective date are left untouched. As a result, some localities, including city of Naples, its encompassing Collier County, St. Pete Beach, and Fernandino Beach, rushed to pass their own customary use ordinances ahead of the deadline to preserve their authority over local beaches.

But despite state and local action, the fate of customary use ordinances may lie in court. Specifically, a federal court case underway in Pensacola, in which a beach owner is challenging a customary use ordinance, may stand to offer a definitive rule on the issue. Because customary use is used across the country, the court's decision could also impact other states.

Monroe, Washington, passes an ordinance banning charged or convicted drug offenders from certain areas of town. Monroe Mayor Geoffrey Thomas signed a resolution (No. 012/2018) last month that designates a .07 square mile section of the city as a “Stay Out of Drugs Area” (SODA). This latest action follows the passage of an early ordinance (No. 05/2018) that authorized the Monroe Municipal Court to “condition the pretrial release and/or the post-conviction deferral or suspension of sentence for drug offenders upon the defendant’s continued physical exclusion from such areas.”

Under the new ordinance, any defendant charged or convicted of a drug crime can be given a SODA order. Offenders found in violation of the SODA order can be arrested on the spot and taken to court immediately, whereas law enforcement previously needed a warrant or other cause for detaining them. Violating the SODA would also constitute a new criminal offense, leading to additional charges.

The area in question is a noted crime hot spot. According to data compiled by the Monroe Police Department, 57 percent of the city’s substance abuse-related crimes and 40 percent of burglaries occurred in the SODA. Former Monroe Police Deputy Ken Ginnard told the Monroe Monitor that his office received nearly 6,000 calls from the area last year. “These calls themselves are taking up a lot of resources and time,” Ginnard said. To that end, the resolution is designed to, “serve, promote and protect the public interest by decreasing the likelihood of recidivism by criminal defendants and reducing the incidence of illegal drug activity” within the area.

The ordinance follows similar action taken by other Washington localities, including Marysville, Arlington, Bothell, and Everett.

Ventura, California, cracks down on illegal fireworks with new ordinances. The Ventura City Council recently passed legislation that aids local law enforcement in tightening its control over illegal fireworks use. The emergency ordinance went into effect immediately in anticipation of firework season. It permits law enforcement officers to fine residents of properties where fireworks are set off, regardless of whether the homeowner purchased the fireworks.

Local law enforcement officials praised the new ordinances for its usefulness in deterring residents from setting off fireworks. Ventura Police Chief Ken Corney stressed how the new law will help law enforcement. “The new ordinance provides another disincentive to use illegal fireworks,” said Corney.

Those who violate the new regulation will be subject to a $132 fine, while second- and third-time offenders can expect fines to jump to $264 and $369 if they happen within 12 months of each other.

The city council is now considering a permanent fireworks ordinance that will be read for a second time on July 16.


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