Escambia County commissioners navigate treacherous legal and political waters as they consider a customary use ordinance for Perdido Key beaches, attempting to balance private property rights against public beach access in what has become the most polarizing issue first-term commissioners, Steve Stroberger, Mike Kohler and Ashlee Hofberger, have faced on the board.
The February 5 Committee of the Whole meeting drew a packed house as the commissioners discussed opening privately-owned “dry sand” areas to public use.
- “In my little over three years on the board, I don’t think we’ve had anything this polarizing as of today,” District 2 Commissioner Mike Kohler said. “On any given day, we get 20 emails on both sides, for and against.”
What’s at Stake
At the heart of the debate is the legal doctrine of customary use, which holds that the public has an “ancient,” “reasonable,” and “without interruption” a right to use privately owned dry sand portions of beaches for recreation.
- Why this matters: Currently, Perdido Key beaches allow public access to the “wet sand” area south of the mean high-water line. Private property owners, however, can restrict access to the dry sand portions of their beachfront property. A customary use ordinance could change that, legally opening these private areas to walking, fishing, swimming and other recreational activities.
History Lesson: The issue emerged following the 2025 repeal of a 2018 state law that had previously limited public access to private dry sand areas. Gov. Ron DeSantis signed Senate Bill 1622 to restore “local control,” allowing counties to recognize recreational customary use without the costly, parcel-by-parcel litigation that has plagued other Florida beach communities.
Deep Divisions on Display
The divide among commissioners mirrors the split in the community, with District 1 Commissioner Steve Stroberger emerging as the strongest voice for property rights.
- “This is both an easy and difficult issue, but I think everyone feels the same way,” Stroberger said. “It’s easy for me because we’re the legislative body for the county. And our job is simple. It’s to protect life, liberty, and property.”
Stroberger argued against what he sees as government overreach: “I don’t believe that the public’s perceived right to trample on private property trumps property rights. I mean, where do we draw the line if we don’t draw the line right now?”
He presented a stack of emails from constituents opposing customary use and described conversations at recent town halls where property rights resonated strongly with residents, even those living far from the beach. “They believe like I do, that property rights is pretty foundational right, and that I should protect that. That’s my duty to do that.”
Contrasting Perspective—From District 3 Commissioner Lumon May:
“There are a couple of things that God gives us. He gives us the land, the seed, the fish, the water. And unfortunately, many people are limited access because of affordability of what they can’t afford,” May said. “I have a fresh memory of my parents being able to go to Johnson Beach for free and walk around in those sands and maybe look up at condos that they could never afford or their children couldn’t afford.”
May made clear where he would stand if forced to choose: “If I ever fail in my vote for anything, I’m going to fail on the side of supporting public access, whether it’s any beach.”
Walton County’s Shadow
The specter of Walton County’s customary use battle hovered over the debate.
“That was like an $8 million lawsuit,” Stroberger noted, warning his colleagues about the financial risks ahead.
County Attorney Alison Rogers confirmed that property owners have already warned the county about potential litigation. “I do think that we have been warned that there will be lawsuits.”
- The attorney outlined several legal hurdles, including a state requirement for business impact studies before passing most ordinances. She suggested the county might use the University of West Florida Haas Center for such a study if commissioners decide to proceed.
Stroberger described his efforts to avoid customary use battles altogether by pursuing alternative solutions: securing more public beach access through property purchases and negotiating partnerships with state parks on Perdido Key Drive to provide Escambia County residents with beach access.
“I’m trying to avoid all that,” Stromberger said. “I’m still going to pursue more property, beach access. That’s what I want to do, and I think that’s the right thing to do. I think this whole subject of customary use is trouble. It’s asking for trouble, and it will not be easy to prove.”
Seeking Compromise
Despite the sharp divisions, other commissioners asked about finding middle ground.
- Kohler suggested the board could pursue a targeted approach rather than a blanket ordinance: “When you look at the definition on customary use, I do think without interruption and free from dispute is a problem. I don’t know where it’s going to land in court. I don’t know that, right? But I’d prefer not to get into a lawsuit. I’d rather try to work to get more customary use with you folks and the condo owners.”
District 5 Commissioner Steven Barry questioned whether the county could identify specific areas with the strongest case for customary use, then build a record through public testimony and historical documentation.
- Rogers emphasized that customary use doesn’t have to be an all-or-nothing proposition: “It’s our interpretation that customary use is not an all-or-nothing proposition. It can be smaller pieces. It’s not all of the beach or none.”
Waiting for Court Guidance
The board’s discussion revealed that timing may not be entirely in the commissioners’ control. County staff referenced an upcoming 11th Circuit Court of Appeals case involving Redington Beach’s customary use ordinance, with oral arguments scheduled for March 24.
County staff expressed hope that the decision “will lend a lot of explanation to these elements” of customary use law that remain undefined.
- However, Rogers cautioned that oral arguments don’t guarantee a quick decision: “Just because the oral arguments are on the 24th does not mean we’re going to get a written opinion on the 24th. We can’t control when that would happen. They could sit on it for a week or a year.”
What Happens Next
The board made no decisions at the February 5 meeting, instead directing staff to continue researching the issue.
Public comment is scheduled for the March 19 regular board meeting, where residents on both sides will have the opportunity to speak and potentially submit historical documents, photographs and other evidence to support their positions.
Stroberger made clear he’s open to continuing the conversation, but with ground rules: “Everyone’s got to be a lot more respectful, no more damn fingers and all that stuff. That really ticks me off. If you want to help and you want to come to a compromise, you need to find out what a compromise is going to be for you, too.”
- As the March 19 public hearing approaches, both sides are preparing to make their case—knowing that whatever the board decides, someone will likely see them in court.
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