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County opens up beach parks day after Beach Town Council approves restricted, residents-only access

By Staff | Apr 28, 2020

The Lee County Board of County Commissioners, during a swift emergency meeting Tuesday, voted to open up all county beach parks beginning Wednesday at dawn.

The action took place one day after the Fort Myers Beach Council approved a limited-access reopening of the beaches there for town residents only, with masks.

Fort Myers Beach Mayor Ray Murphy said the actions by the county could lead to a total reopening of the beach.

“This is what I feared,” he said. “I don’t want to be responsible for people getting sick and dying.”

Short of the county erecting barriers at the edges of those county parks, Murphy indicated that it would be difficult for the town’s prohibitions on non-residents accessing the beachfront within Town purview. He said council would meet on Friday.

“That’s the way it goes in a democratic society,” Murphy said.

It was a whirlwind 24 hours after the town council voted for a limited reopening of the beachfront Monday to allow town residents to access the beach for walking and exercising purposes beginning Tuesday from 7 a.m. to 10 a.m. The town council voted not to allow swimming or reclining with its soft re-opening.

The county action taken Tuesday will allow swimming

The Town vote was discussed Tuesday.

County Attorney Richard Wesch questioned the constitutionality of the Town Council’s residents-only beach access edict and said the county was within its rights to open up the beaches at the county parks. Wesch also questioned whether the town could legally prevent people from swimming in state-owned waters.

Town of Fort Myers Beach Attorney John Herin Jr. had also raised constitutional concerns regarding the Town Council’s limited beach re-opening vote over the residency provision.

After the vote by the commissioners, Lee County Board of Commissioners Chairman Brian Hamman said he would be reaching out to Murphy so that “they (Fort Myers Beach) get on the same page as us.”

Town Vice Mayor Rexann Hosafros, Councilmember Dan Allers and Councilmember Jim Atterholt had voted for the limited reopening on Monday, which had been opposed by Murphy and Councilmember Billy Veach.

* Lee County actions

The vote by the county commissioners followed a vote one week earlier in which the county opened up most parks, but left its beach parks closed.

“What we really observed was people going out and abiding by the CDC guidelines,” Hamman said.

Lee County Commissioner Ray Sandelli, whose district includes Fort Myers Beach said “I want to be consistent and fair with everybody” in opening up the county beach parks.

“I agree with opening our parks. I think that has been overdue,” Sandelli said.

Sandelli said he wants to get restaurants that have outdoor seating next.

County Manager Roger Desjarlais said one of the reasons for loosening restrictions in the county is that the hospitals have not been overwhelmed as had been predicted at the beginning of the pandemic.

Desjarlais said that businesses needed relief from the restrictions enacted since the pandemic began.

Beach patrons would have to bring in their own chairs, Desjarlais said. Beachgoers will still have to abide by social distancing guidelines of not gathering in groups of 10 or more, and staying 6 feet away from each other.

Hamman said that couples should be allowed to stay close to each other and not be subject to social distancing guidelines. Hamman said law enforcement should not be in the position of being the social distancing police.

“I think this has been stressful on all of us,” he said.

* Monday actions taken by the Beach Town Council

“The reality is once the beach is open, it’s open,” Murphy said.

“You know, people can talk about enforcement and this and that but I don’t really believe that is going to happen.”

“That’s been my whole thing so far is the safety of our residents. That’s who really I’m looking out for. There is a lot of competing interests with the businesses, the residents and the people who want to rent their places out. I understand that. I’m a businessman myself,” Murphy said.

“We’ve come so far here at this juncture to risk other cases of the virus coming in here.”

Herin warned of the constitutional problems with the town resolution.

“Constitutionally, saying well we are going to allow Beach residents versus no one else we may run into some issues there as to how we are distinguishing and legally distinguishing between residents and non-residents when there is no rational basis for doing so. Either the beaches are open or they are not. To say they are open to this class of individuals versus not these individuals may run into constitutional issues,” Herin said.

Murphy asked Town Manager Roger Hernstadt about how the Beach’s plans for reopening could be enforced. Hernstadt said he believed the town’s two code enforcement officers and four beach patrol officers would be able to handle the enforcement if there is good compliance though “possibly no.”

“Unless somebody was acting irresponsibly, nobody would walk up to them and challenge their residency,” Hernstadt said. “If someone is on the beach and complying with the order as it is crafted by the council and behaves in accordance with the order we probably wouldn’t stop and challenge them to see if they are a resident or not.”

Hernstadt said the town would be removing the barricades that have been set up at the beach access points. “We are not going to open them up and close them,” he said.

Allers said that by not allowing parking or chairs, that will be easier to enforce than town residency. In their vote, the county commissioners stated that beachgoers will need to bring their own chairs.

Murphy said the county’s actions were predictable.

“This conceivably could open up the whole beach,” he said, “The county is going to do what the county is going to do. It always has and always will.”