Boat-based ice cream shop sues Walton County to stay afloat

By Mary Ann Magnell | Sep 15, 2018

PENSACOLA — An ice cream retailer that sells frozen treats from an inflatable boat is asking a Florida district court to put a freeze on efforts by Walton County code enforcement to shut down the floating shop in the Gulf of Mexico.

Gulfstream Ice Cream of Florida, which has been in business since 1999, filed a lawsuit on Sept. 7 against Walton County, Florida, to keep selling its ice cream from an inflatable boat in the Gulf of Mexico. 

The lawsuit was filed in the Northern District of Florida, Pensacola Division, seeking declaratory judgment against the county in favor of Gulfstream Ice Cream. 

Gulfstream Ice Cream also requested a permanent injunction against the defendant, which “enjoins and prohibits the Defendant from citing and/or arresting Plaintiff and its employees based upon Plaintiff utilizing, floating upon, transporting goods and service, and selling ice cream while within and upon the waters of the Gulf of Mexico,” according to court documents.


The plaintiff, a Florida-based business that sells ice cream from a non-motorized inflatable boat, has been operating its business in Okaloosa County and Walton County, Florida. 

Its boat “is equipped with four tires, a cooler, and a small sign (the ‘Raft’).” According to the filing, patrons “must enter the Gulf of Mexico to make purchases.” 

The company, whose operation was approved by the Walton County Planning Department Code Enforcement Office in 1999, received numerous citations during the summer of 2018 for alleged code violations. In the filing, the plaintiff alleged that when asked about the citations, he was told that the citations were based on the plaintiff violating the Walton County Code (the “Code”) “by selling ice cream in violation of the Code.”

According to the filing, the plaintiff has been “forcibly restrained and cited one or more times” for selling ice cream on the Gulf of Mexico. 

The plaintiff is seeking a declaratory judgment to define the Gulf of Mexico as a navigable waterway that includes the reasonable use of the waterway for many purposes, including “travel and transportation, commerce.”

A declaratory judgment is also sought because the defendant “lacks a legal basis to cite and/or arrest” the plaintiff for selling ice cream “while within and upon the waters of the Gulf of Mexico.” 

Additionally, the plaintiff seeks a declaratory judgment because there is “insufficient evidence to support a violation of the Code based upon Plaintiff utilizing, floating upon, transporting goods and services,” on the waterway. 

Further, the plaintiff has requested a temporary and injunctive relief against the defendant, stating that it has “acted without authority and outside the scope of its jurisdiction.

“It is in the public interest to enjoin Defendant to prevent further unlawful regulation of the waters of the Gulf of Mexico,” the filing stated. “This is especially true given that such regulation has, historically, been reserved for the federal government.” 

 

U.S. District Court, Northern District of Florida Pensacola Division, Case number 3:18-cv-02088

 

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