By David Madden

NORTH WILDWOOD, NJ (CBS) — A bid to permanently shut down a portion of the North Wildwood beach in the name of public safety has been thrown out by a judge down the shore. But those pushing for the closure are vowing to continue their fight.

Superior Court Judge Julio Mendez found that the family of Paul Smith, a resident of Horsham, Pennsylvania,  had to seek administrative remedies from the town and the state before going to court.

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Smith drowned while walking with his daughter on the beach in Hereford Inlet in 2012 when the sand literally collapsed under his feet.

Family attorney Paul D’Amato had sought an order shutting that section of beach down forever.

“I don’t consider this a loss for the Smith family. They’re doing the right thing,” D’Amato told KYW Newsradio. “They’re trying to prevent a tragedy like this happening to another family.”

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Plans are to petition North Wildwood City Council and the New Jersey Department of Environmental Protection to close that beach down.

“The losers in this case are the residents of North Wildwood,” D’Amato continued, “because their local government has turned a blind eye to a known danger.”

North Wildwood has signs posted warning people to stay out of the water in the inlet and the beach itself is unguarded.

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Mayor Patrick Rosenello was not available for comment to KYW, but in a statement released to the Press of Atlantic City said his town would “forever be sympathetic to the Smith Family.”

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The statement also advised beach goers to heed all warning signs and to never swim in waters where a lifeguard is not on  duty.