Florida Senate - 2021                               CS for SB 88
       
       
        
       By the Committee on Judiciary; and Senators Brodeur and Baxley
       
       
       
       
       
       590-01950-21                                            202188c1
    1                        A bill to be entitled                      
    2         An act relating to farming operations; amending s.
    3         823.14, F.S.; revising legislative findings; defining
    4         the term “agritourism activity”; revising the
    5         definition of the term “farm operation”; prohibiting
    6         farms from being held liable for certain claims for
    7         tort liability except under certain circumstances;
    8         providing a burden of proof; prohibiting nuisance
    9         actions from being filed against farm operations
   10         unless specified conditions are met; providing
   11         requirements for and limitations on damages; providing
   12         that plaintiffs who bring nuisance actions against
   13         farm operations are liable for certain costs and
   14         expenses under certain conditions; amending ss.
   15         193.4517, 316.5501, 633.202, and 812.015, F.S.;
   16         conforming cross-references; reenacting ss.
   17         163.3162(2)(b), 163.3163(3)(b), 403.9337(4), and
   18         570.86(4), F.S., relating to agricultural lands and
   19         practices, applications for development permits and
   20         disclosure and acknowledgment of contiguous
   21         sustainable agricultural land, Model Ordinance for
   22         Florida-Friendly Fertilizer Use on Urban Landscapes,
   23         and definitions relating to agritourism, respectively,
   24         to incorporate the amendments made by this act to s.
   25         823.14, F.S., in references thereto; providing an
   26         effective date.
   27  
   28         WHEREAS, all 50 U.S. states have enacted “Right to Farm”
   29  laws that protect farmers and ranchers from nuisance lawsuits
   30  filed by individuals who move into a rural area where normal
   31  farming operations exist and then use legal actions to stop or
   32  interfere with ongoing farming operations, and
   33         WHEREAS, Florida’s Right to Farm legislation was enacted in
   34  1979 to protect agricultural operations from these types of
   35  actions and is in need of updating, and
   36         WHEREAS, as our state continues to experience unprecedented
   37  growth and as residential development continues to encroach upon
   38  our rural areas, there is a possibility for increased complaints
   39  regarding farming practices approved by the Department of
   40  Environmental Protection and the Department of Agriculture and
   41  Consumer Services, such as harvesting, transporting crops, and
   42  conducting controlled burning, despite the use of best
   43  management practices, and
   44         WHEREAS, because of the COVID-19 pandemic, there is an
   45  increasing exodus from more densely populated areas from both
   46  within and outside this state into our rural communities,
   47  potentially creating conflicts with existing legal farming
   48  activities and their complementary agritourism activities, and
   49         WHEREAS, there is a longstanding tradition of using
   50  agritourism activities, such as hayrides, corn mazes, winery
   51  tours, and farm festivals, to supplement income received from
   52  growing crops and raising farm animals, and
   53         WHEREAS, ensuring the potential for revenues from
   54  agritourism activities is necessary to preserve farms and the
   55  rural character of many areas in the face of rising costs and
   56  foreign competition and the many uncertainties associated with
   57  growing crops and raising farm animals, and
   58         WHEREAS, it is timely and prudent to modernize the Florida
   59  Right to Farm Act by clarifying definitions, standing, and
   60  procedures in order to ensure that the original intent of
   61  Florida’s Right to Farm law is preserved and a viable
   62  agricultural industry in this state can continue, NOW,
   63  THEREFORE,
   64  
   65  Be It Enacted by the Legislature of the State of Florida:
   66  
   67         Section 1. Subsections (2), (3), and (4) of section 823.14,
   68  Florida Statutes, are amended, and subsections (7), (8), and (9)
   69  are added to that section, to read:
   70         823.14 Florida Right to Farm Act.—
   71         (2) LEGISLATIVE FINDINGS AND PURPOSE.—The Legislature finds
   72  that agricultural production is a major contributor to the
   73  economy of the state; that agricultural lands constitute unique
   74  and irreplaceable resources of statewide importance; that the
   75  continuation of agricultural activities preserves the landscape
   76  and environmental resources of the state, contributes to the
   77  increase of tourism, including agritourism, and furthers the
   78  economic self-sufficiency of the people of the state; and that
   79  the encouragement, development, improvement, and preservation of
   80  agriculture will result in a general benefit to the health and
   81  welfare of the people of the state. The Legislature further
   82  finds that agricultural activities conducted on farm land in
   83  urbanizing areas are potentially subject to lawsuits based on
   84  the theory of nuisance and that these suits encourage and even
   85  force the premature removal of the farm land from agricultural
   86  use. It is the purpose of this act to protect reasonable
   87  agricultural and complementary agritourism activities conducted
   88  on farm land from nuisance suits and other similar lawsuits.
   89         (3) DEFINITIONS.—As used in this section:
   90         (a) “Agritourism activity” has the same meaning as provided
   91  in s. 570.86.
   92         (b) “Farm” means the land, buildings, support facilities,
   93  machinery, and other appurtenances used in the production of
   94  farm or aquaculture products.
   95         (c)(b) “Farm operation” means all conditions or activities
   96  by the owner, lessee, agent, independent contractor, and
   97  supplier which occur on a farm in connection with the production
   98  of farm, honeybee, or apiculture products or in connection with
   99  complementary agritourism activities. These conditions and
  100  activities include, but are and includes, but is not limited to,
  101  the marketing of produce at roadside stands or farm markets; the
  102  operation of machinery and irrigation pumps; the generation of
  103  noise, odors, dust, fumes, and particle emissions and fumes;
  104  ground or aerial seeding and spraying; the placement and
  105  operation of an apiary; the application of chemical fertilizers,
  106  conditioners, insecticides, pesticides, and herbicides;
  107  agritourism activities; and the employment and use of labor.
  108         (d)(c) “Farm product” means any plant, as defined in s.
  109  581.011, or animal or insect useful to humans and includes, but
  110  is not limited to, any product derived therefrom.
  111         (e)(d) “Established date of operation” means the date the
  112  farm operation commenced. If the farm operation is subsequently
  113  expanded within the original boundaries of the farm land, the
  114  established date of operation of the expansion shall also be
  115  considered as the date the original farm operation commenced. If
  116  the land boundaries of the farm are subsequently expanded, the
  117  established date of operation for each expansion is deemed to be
  118  a separate and independent established date of operation. The
  119  expanded operation shall not divest the farm operation of a
  120  previous established date of operation.
  121         (4) FARM OPERATIONS; NUISANCE FARM OPERATION NOT TO BE OR
  122  BECOME A NUISANCE.—
  123         (a) No farm operation which has been in operation for 1
  124  year or more since its established date of operation and which
  125  was not a nuisance at the time of its established date of
  126  operation shall be a public or private nuisance if the farm
  127  operation conforms to generally accepted agricultural and
  128  management practices, except that the following conditions shall
  129  constitute evidence of a nuisance:
  130         1. The presence of untreated or improperly treated human
  131  waste, garbage, offal, dead animals, dangerous waste materials,
  132  or gases which are harmful to human or animal life.
  133         2. The presence of improperly built or improperly
  134  maintained septic tanks, water closets, or privies.
  135         3. The keeping of diseased animals which are dangerous to
  136  human health, unless such animals are kept in accordance with a
  137  current state or federal disease control program.
  138         4. The presence of unsanitary places where animals are
  139  slaughtered, which may give rise to diseases which are harmful
  140  to human or animal life.
  141         (b) No farm operation shall become a public or private
  142  nuisance as a result of a change in ownership, a change in the
  143  type of farm product being produced, a change in conditions in
  144  or around the locality of the farm, or a change brought about to
  145  comply with best management practices adopted by local, state,
  146  or federal agencies if such farm has been in operation for 1
  147  year or more since its established date of operation and if it
  148  was not a nuisance at the time of its established date of
  149  operation.
  150         (c)A farm may not be held liable for a claim involving
  151  public or private nuisance, negligence, trespass, personal
  152  injury, strict liability, or other tort based on a farm
  153  operation that is alleged to cause harm outside of the farm
  154  unless the plaintiff proves by clear and convincing evidence
  155  that the claim arises out of conduct that did not comply with
  156  state and federal environmental laws, regulations, or best
  157  management practices.
  158         (d)A nuisance action may not be filed against a farm
  159  operation unless the real property affected by the conditions
  160  alleged to be a nuisance is located within one-half mile of the
  161  source of the activity or structure alleged to be a nuisance.
  162         (7)COMPENSATORY DAMAGES.—When the alleged nuisance
  163  emanated from a farm operation, the compensatory damages that
  164  may be awarded to a plaintiff for a private nuisance action must
  165  be measured by the reduction in the fair market value of the
  166  plaintiff’s property caused by the nuisance, but may not exceed
  167  the fair market value of the property.
  168         (8) PUNITIVE DAMAGES.—A plaintiff may not recover punitive
  169  damages in a private nuisance action against a farm unless:
  170         (a) The alleged nuisance is based on substantially the same
  171  conduct that resulted in a criminal conviction or a civil
  172  enforcement action by a state or federal environmental
  173  regulatory agency; and
  174         (b) The conviction or enforcement action occurred within 3
  175  years of the first act forming the basis of the nuisance action.
  176         (9)NUISANCE ACTIONS BASED ON EXISTING FARM OPERATIONS.—A
  177  plaintiff who fails to prevail in a nuisance action based on a
  178  farm operation that has been in existence for 1 year or more
  179  before the date that the action was instituted and that conforms
  180  with generally accepted agricultural and management practices or
  181  state and federal environmental laws is liable to the farm for
  182  all costs and expenses incurred in defense of the action.
  183         Section 2. Paragraphs (a) and (b) of subsection (1) of
  184  section 193.4517, Florida Statutes, are amended to read:
  185         193.4517 Assessment of agricultural equipment rendered
  186  unable to be used due to Hurricane Michael.—
  187         (1) As used in this section, the term:
  188         (a) “Farm” has the same meaning as provided in s.
  189  823.14(3)(b) s. 823.14(3)(a).
  190         (b) “Farm operation” has the same meaning as provided in s.
  191  823.14(3)(c) s. 823.14(3)(b).
  192         Section 3. Subsection (1) of section 316.5501, Florida
  193  Statutes, is amended to read:
  194         316.5501 Permitting program for combination truck tractor,
  195  semitrailer, and trailer combination coupled as a single unit
  196  subject to certain requirements.—
  197         (1) By no later than January 1, 2020, the Department of
  198  Transportation in conjunction with the Department of Highway
  199  Safety and Motor Vehicles shall develop a permitting program
  200  that, notwithstanding any other provision of law except
  201  conflicting federal law and applicable provisions of s. 316.550,
  202  prescribes the operation of any combination of truck tractor,
  203  semitrailer, and trailer combination coupled together so as to
  204  operate as a single unit in which the semitrailer and the
  205  trailer unit may each be up to 48 feet in length, but not less
  206  than 28 feet in length, if such truck tractor, semitrailer, and
  207  trailer combination is:
  208         (a) Being used for the primary purpose of transporting farm
  209  products as defined in s. 823.14(3)(d) s. 823.14(3)(c) on a
  210  prescribed route within the boundary of the Everglades
  211  Agricultural Area as described in s. 373.4592(15);
  212         (b) Traveling on a prescribed route that has been submitted
  213  to and approved by the Department of Transportation for public
  214  safety purposes having taken into account, at a minimum, the
  215  point of origin, destination, traffic and pedestrian volume on
  216  the route, turning radius at intersections along the route, and
  217  potential for damage to roadways or bridges on the route;
  218         (c) Operating only on state or local roadways within a
  219  radius of 60 miles from where such truck tractor, semitrailer,
  220  and trailer combination was loaded; however, travel is not
  221  authorized on the Interstate Highway System; and
  222         (d) Meeting the following weight limitations:
  223         1. The maximum gross weight of the truck tractor and the
  224  first trailer shall not exceed 88,000 pounds.
  225         2. The maximum gross weight of the dolly and second trailer
  226  shall not exceed 67,000 pounds.
  227         3. The maximum overall gross weight of the truck tractor
  228  semitrailer-trailer combination shall not exceed 155,000 pounds.
  229         Section 4. Paragraph (b) of subsection (16) of section
  230  633.202, Florida Statutes, is amended to read:
  231         633.202 Florida Fire Prevention Code.—
  232         (16)
  233         (b) Notwithstanding any other provision of law:
  234         1. A nonresidential farm building in which the occupancy is
  235  limited by the property owner to no more than 35 persons is
  236  exempt from the Florida Fire Prevention Code, including the
  237  national codes and Life Safety Code incorporated by reference.
  238         2. An agricultural pole barn is exempt from the Florida
  239  Fire Prevention Code, including the national codes and the Life
  240  Safety Code incorporated by reference.
  241         3. Except for an agricultural pole barn, a structure on a
  242  farm, as defined in s. 823.14(3)(b) s. 823.14(3)(a), which is
  243  used by an owner for agritourism activity, as defined in s.
  244  570.86, for which the owner receives consideration must be
  245  classified in one of the following classes:
  246         a. Class 1: A nonresidential farm building that is used by
  247  the owner 12 or fewer times per year for agritourism activity
  248  with up to 100 persons occupying the structure at one time. A
  249  structure in this class is subject to annual inspection for
  250  classification by the local authority having jurisdiction. This
  251  class is not subject to the Florida Fire Prevention Code but is
  252  subject to rules adopted by the State Fire Marshal pursuant to
  253  this section.
  254         b. Class 2: A nonresidential farm building that is used by
  255  the owner for agritourism activity with up to 300 persons
  256  occupying the structure at one time. A structure in this class
  257  is subject to annual inspection for classification by the local
  258  authority having jurisdiction. This class is not subject to the
  259  Florida Fire Prevention Code but is subject to rules adopted by
  260  the State Fire Marshal pursuant to this section.
  261         c. Class 3: A structure or facility that is used primarily
  262  for housing, sheltering, or otherwise accommodating members of
  263  the general public. A structure or facility in this class is
  264  subject to annual inspection for classification by the local
  265  authority having jurisdiction. This class is subject to the
  266  Florida Fire Prevention Code.
  267         Section 5. Paragraph (g) of subsection (1) of section
  268  812.015, Florida Statutes, is amended to read:
  269         812.015 Retail and farm theft; transit fare evasion;
  270  mandatory fine; alternative punishment; detention and arrest;
  271  exemption from liability for false arrest; resisting arrest;
  272  penalties.—
  273         (1) As used in this section:
  274         (g) “Farm theft” means the unlawful taking possession of
  275  any items that are grown or produced on land owned, rented, or
  276  leased by another person. The term includes the unlawful taking
  277  possession of equipment and associated materials used to grow or
  278  produce farm products as defined in s. 823.14(3)(d) s.
  279  823.14(3)(c).
  280         Section 6. For the purpose of incorporating the amendments
  281  made by this act to section 823.14, Florida Statutes, in a
  282  reference thereto, paragraph (b) of subsection (2) of section
  283  163.3162, Florida Statutes, is reenacted to read:
  284         163.3162 Agricultural Lands and Practices.—
  285         (2) DEFINITIONS.—As used in this section, the term:
  286         (b) “Farm operation” has the same meaning as provided in s.
  287  823.14.
  288         Section 7. For the purpose of incorporating the amendments
  289  made by this act to section 823.14, Florida Statutes, in a
  290  reference thereto, paragraph (b) of subsection (3) of section
  291  163.3163, Florida Statutes, is reenacted to read:
  292         163.3163 Applications for development permits; disclosure
  293  and acknowledgment of contiguous sustainable agricultural land.—
  294         (3) As used in this section, the term:
  295         (b) “Farm operation” has the same meaning as defined in s.
  296  823.14.
  297         Section 8. For the purpose of incorporating the amendments
  298  made by this act to section 823.14, Florida Statutes, in a
  299  reference thereto, subsection (4) of section 403.9337, Florida
  300  Statutes, is reenacted to read:
  301         403.9337 Model Ordinance for Florida-Friendly Fertilizer
  302  Use on Urban Landscapes.—
  303         (4) This section does not apply to the use of fertilizer on
  304  farm operations as defined in s. 823.14 or on lands classified
  305  as agricultural lands pursuant to s. 193.461.
  306         Section 9. For the purpose of incorporating the amendments
  307  made by this act to section 823.14, Florida Statutes, in a
  308  reference thereto, subsection (4) of section 570.86, Florida
  309  Statutes, is reenacted to read:
  310         570.86 Definitions.—As used in ss. 570.85-570.89, the term:
  311         (4) “Farm operation” has the same meaning as in s. 823.14.
  312         Section 10. This act shall take effect July 1, 2021.