Senate Bill sb2484

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    Florida Senate - 2004                                  SB 2484

    By Senator Alexander





    17-1636A-04                                             See HB

  1                      A bill to be entitled

  2         An act relating to citrus canker; amending s.

  3         120.80, F.S.; excluding certain statements and

  4         actions by the Department of Agriculture and

  5         Consumer Services from application of certain

  6         rules; creating s. 933.40, F.S.; providing

  7         definitions; providing for issuance of

  8         agriculture warrants for certain purposes under

  9         certain circumstances; requiring probable

10         cause; providing criteria procedures for

11         issuing such warrants; providing certain

12         guidelines and limitations on required notice;

13         providing for ex parte hearing for certain

14         warrant applications; providing a time limit on

15         the effectiveness of certain warrants;

16         providing a criminal penalty for refusal to

17         permit execution of a warrant; prohibiting

18         certain persons from giving certain information

19         as a confidential informant under certain

20         circumstances; providing construction; amending

21         s. 581.184, F.S.; authorizing the destruction

22         of certain trees; providing a notice

23         requirement to certain property owners;

24         preempting regulation of tree removal and

25         destruction to the state; providing an

26         effective date.

27  

28  Be It Enacted by the Legislature of the State of Florida:

29  

30         Section 1.  Paragraph (c) is added to subsection (2) of

31  section 120.80, Florida Statutes, to read:

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    Florida Senate - 2004                                  SB 2484
    17-1636A-04                                             See HB




 1         120.80  Exceptions and special requirements;

 2  agencies.--

 3         (2)  DEPARTMENT OF AGRICULTURE AND CONSUMER SERVICES.--

 4         (c)  The provisions of ss. 120.54 and 120.56 shall not

 5  apply to any statement or action by the department in

 6  furtherance of its duties pursuant to s. 581.184(2).

 7         Section 2.  Section 933.40, Florida Statutes, is

 8  created to read:

 9         933.40  Agriculture warrants.--

10         (1)  As used in this section:

11         (a)  "Agriculture warrant" means an order in writing,

12  in the name of the people, signed by a person competent to

13  issue search warrants pursuant to s. 933.01, authorizing

14  department employees to exercise any duty or power granted by

15  chapter 581 or chapter 585 with respect to any plant pest or

16  animal pest identified in the warrant, including, but not

17  limited to, conducting inspections, setting traps, examining

18  records, testing, dipping, disinfecting, treating,

19  identifying, quarantining, taking samples and measurements,

20  and seizing or destroying property.

21         (b)  "Animal pest" means any biological or chemical

22  residue as defined in s. 585.01(4), pathogenic organism or

23  virulent organism as defined in s. 585.01(15), or any

24  transmissible, communicable, contagious, or infectious disease

25  as described in s. 585.01(18).

26         (c)  "Department" means the Department of Agriculture

27  and Consumer Services.

28         (d)  "Electronic signature" means any letters,

29  characters, symbols, or process manifested by electronic or

30  similar means and attached to or logically associated with a

31  

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    Florida Senate - 2004                                  SB 2484
    17-1636A-04                                             See HB




 1  record and executed or adopted by a person with the intent to

 2  sign the record.

 3         (e)  "Parcel number" means the distinct parcel

 4  identification number assigned to a parcel of property by the

 5  property appraiser for the county in which the property is

 6  located.

 7         (f)  "Plant pest" means any plant pest, noxious weed,

 8  or arthropod declared a nuisance by the department pursuant to

 9  s. 581.031(6), or any plant infected or exposed to infection

10  as defined in s. 581.184(1).

11         (g)  When capitalized, "Section" has the meaning

12  ascribed in 43 U.S.C. s. 751.

13         (2)  An agriculture warrant shall be issued only upon

14  application supported by affidavit and shall describe the

15  street address and city or the parcel number and county of

16  each property to be subject to the warrant and each type of

17  plant pest or animal pest which will be the subject of the

18  warrant.

19         (3)  An agriculture warrant shall be issued only upon

20  probable cause. In determining the existence of probable cause

21  for the issuance of one or more agriculture warrants, one or

22  more of the following findings may be sufficient to support a

23  determination of probable cause:

24         (a)  The property to be subject to the agriculture

25  warrant is located within an area subject to a quarantine

26  which has been established by the department with respect to

27  the plant pest or animal pest that is the subject of the

28  warrant; or

29         (b)  Under all of the circumstances set forth in the

30  affidavit, there is a fair probability the property subject to

31  the agriculture warrant:

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    Florida Senate - 2004                                  SB 2484
    17-1636A-04                                             See HB




 1         1.  Contains a plant pest;

 2         2.  Is located in an area which may reasonably be

 3  suspected of being infested or infected with a plant pest due

 4  to its proximity to a known infestation, or if it is

 5  reasonably exposed to infestation;

 6         3.  Is located in a Section in which the department has

 7  diagnosed the presence of one or more plants infected with

 8  citrus canker as defined in s. 581.184(1)(a) or is located in

 9  a Section adjacent thereto;

10         4.  Contains animals affected with any animal pest or

11  which have been exposed to and are liable to spread the animal

12  pest; or

13         5.  Contains any other property that is liable to

14  convey an animal pest.

15         (4)  A single warrant application shall be sufficient

16  for the issuance of multiple agriculture warrants if the

17  application for the warrants describes the street address and

18  city or the parcel number and county of each property subject

19  to an agriculture warrant and all such properties are located

20  within the same county.

21         (5)  Agriculture warrants may be signed by any person

22  competent to issue search warrants under s. 933.01, either

23  manually, by signature stamp, or by electronic signature. The

24  judge or magistrate, upon examination of the application and

25  proofs submitted, if satisfied that probable cause exists for

26  the issuing of one or more agriculture warrants, shall issue

27  such agriculture warrants with his or her signature and office

28  affixed thereto. Such agriculture warrants may be served and

29  executed by employees of the department, with the assistance

30  of third parties supervised by department employees, and shall

31  

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    Florida Senate - 2004                                  SB 2484
    17-1636A-04                                             See HB




 1  authorize department employees with such assistance to

 2  undertake all actions authorized by the warrant.

 3         (6)  Prior notice to the owner or occupant of the

 4  property to be subject to the agriculture warrant, or to any

 5  other person, of the application for agriculture warrants

 6  shall not be required as a condition for the issuance of

 7  warrants under this section. At the time of execution of the

 8  agriculture warrant, a copy, including any applicable renewal

 9  or extension thereof under subsection (8), shall be delivered

10  to a person 18 years of age or older who is occupying or

11  living on the property subject to the warrant or shall be

12  attached to a conspicuous place on that property.

13         (7)  The department shall be entitled to an ex parte

14  hearing forthwith on an application for an agriculture

15  warrant.

16         (8)  An agriculture warrant shall be effective for 60

17  days and shall authorize multiple executions of the warrant

18  prior to its expiration. An agriculture warrant may be

19  extended or renewed by the judge or magistrate who signed and

20  issued the original warrant upon satisfaction of such official

21  that probable cause continues to exist for the reissuance of

22  the warrant. Such warrant must be returned to the issuing

23  official prior to the expiration date specified in the warrant

24  or within the extended or renewed time.

25         (9)  An agriculture warrant shall not:

26         (a)  Be executed between 7 p.m. of any day and 7 a.m.

27  of the succeeding day, or on any legal holiday;

28         (b)  Authorize the entry into or inspection of the

29  interior of any occupied dwelling or any automobile; or

30         (c)  Be issued in blank.

31  

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    Florida Senate - 2004                                  SB 2484
    17-1636A-04                                             See HB




 1         (10)  Any person who willfully refuses to permit

 2  execution of any agriculture warrant commits a misdemeanor of

 3  the second degree, punishable as provided in s. 775.082 or s.

 4  775.083.

 5         (11)  A person executing an agriculture warrant

 6  pursuant to this section shall not give information as a

 7  confidential informer, testify as a witness, or execute an

 8  affidavit as a predicate for the issuance of a criminal search

 9  warrant or for probable cause to search any dwelling or other

10  building without a criminal search warrant.

11         (12)  Nothing in this section shall be construed to

12  restrict the powers granted by general law to an agency of the

13  state, or to a unit of local government acting on behalf of

14  such agency pursuant to a contract with the agency, to conduct

15  inspections with or without warrant as authorized by general

16  law.

17         Section 3.  Subsections (2) and (4) of section 581.184,

18  Florida Statutes, are amended to read:

19         581.184  Adoption of rules; citrus canker eradication;

20  voluntary destruction agreements.--

21         (2)(a)  The department shall remove and destroy all

22  infected citrus trees and all citrus trees exposed to

23  infection. The department may destroy by chipping trees

24  removed pursuant to this section. Notice of the removal of

25  such trees, by immediate final order, shall may be provided to

26  the owner of the property on which such trees are located. An

27  immediate final order issued by the department pursuant to

28  this section shall notify the property owner that the citrus

29  trees that are the subject of the immediate final order will

30  be removed and destroyed unless the property owner, no later

31  than 10 days after delivery of the immediate final order

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    Florida Senate - 2004                                  SB 2484
    17-1636A-04                                             See HB




 1  pursuant to subsection (3), requests and obtains a stay of the

 2  immediate final order from the district court of appeal with

 3  jurisdiction to review such requests. The property owner shall

 4  not be required to seek a stay of the immediate final order by

 5  the department prior to seeking the stay from the district

 6  court of appeal.

 7         (b)  Regulation of the removal or destruction of citrus

 8  trees pursuant to this section is hereby preempted to the

 9  state. No county, municipal, or other local ordinance or other

10  regulation that would otherwise impose requirements,

11  restrictions, or conditions upon the department or its

12  contractors with respect to the removal or destruction of

13  citrus trees pursuant to this section shall be enforceable

14  against the department or its contractors. Notwithstanding the

15  provisions of paragraph (a), and for the 2003-2004 fiscal year

16  only, notice of the removal of infected citrus trees and

17  citrus trees exposed to infection, by immediate final order,

18  shall be provided to the owner of the property on which such

19  trees are located. This paragraph expires July 1, 2004.

20         (4)  Simultaneously with the delivery of an immediate

21  final order, the department shall also provide the following

22  information to a property owner:

23         (a)  The physical location of the infected tree which

24  has necessitated removal and destruction of the property

25  owner's tree.

26         (b)  The diagnostic report that resulted in the

27  determination that the infected tree is infected with the

28  citrus canker.

29         (c)  The distance between the infected citrus tree and

30  a property owner's exposed citrus trees.

31  

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    Florida Senate - 2004                                  SB 2484
    17-1636A-04                                             See HB




 1         Section 4.  This act shall take effect upon becoming a

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