Florida Senate - 2021                        CS for CS for SB 88
       
       
        
       By the Committees on Environment and Natural Resources; and
       Judiciary; and Senators Brodeur, Baxley, Albritton, and Perry
       
       
       
       
       592-02135-21                                            202188c2
    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 definitions;
    5         prohibiting farms from being held liable for certain
    6         claims for tort liability except under certain
    7         circumstances; providing a burden of proof;
    8         prohibiting nuisance actions from being filed against
    9         farm operations unless specified conditions are met;
   10         providing requirements for and limitations on damages;
   11         providing that plaintiffs who bring nuisance actions
   12         against farm operations are liable for certain costs
   13         and expenses under certain conditions; amending ss.
   14         193.4517, 316.5501, 633.202, and 812.015, F.S.;
   15         conforming cross-references; reenacting ss.
   16         163.3162(2)(b), 163.3163(3)(b), 403.9337(4), and
   17         570.86(4), F.S., relating to agricultural lands and
   18         practices, applications for development permits and
   19         disclosure and acknowledgment of contiguous
   20         sustainable agricultural land, Model Ordinance for
   21         Florida-Friendly Fertilizer Use on Urban Landscapes,
   22         and definitions relating to agritourism, respectively,
   23         to incorporate the amendments made by this act to s.
   24         823.14, F.S., in references thereto; providing an
   25         effective date.
   26  
   27         WHEREAS, all 50 U.S. states have enacted “Right to Farm”
   28  laws that protect farmers and ranchers from nuisance lawsuits
   29  filed by individuals who move into a rural area where normal
   30  farming operations exist and then use legal actions to stop or
   31  interfere with ongoing farming operations, and
   32         WHEREAS, Florida’s Right to Farm legislation was enacted in
   33  1979 to protect agricultural operations from these types of
   34  actions and is in need of updating, and
   35         WHEREAS, as our state continues to experience unprecedented
   36  growth and as residential development continues to encroach upon
   37  our rural areas, there is a possibility for increased complaints
   38  regarding farming practices approved by the Department of
   39  Environmental Protection and the Department of Agriculture and
   40  Consumer Services, such as harvesting, transporting crops, and
   41  conducting controlled burning, despite the use of best
   42  management practices, and
   43         WHEREAS, because of the COVID-19 pandemic, there is an
   44  increasing exodus from more densely populated areas from both
   45  within and outside this state into our rural communities,
   46  potentially creating conflicts with existing legal farming
   47  activities and their complementary agritourism activities, and
   48         WHEREAS, there is a longstanding tradition of using
   49  agritourism activities, such as hayrides, corn mazes, winery
   50  tours, and farm festivals, to supplement income received from
   51  growing crops and raising farm animals, and
   52         WHEREAS, ensuring the potential for revenues from
   53  agritourism activities is necessary to preserve farms and the
   54  rural character of many areas in the face of rising costs and
   55  foreign competition and the many uncertainties associated with
   56  growing crops and raising farm animals, and
   57         WHEREAS, it is timely and prudent to modernize the Florida
   58  Right to Farm Act by clarifying definitions, standing, and
   59  procedures in order to ensure that the original intent of
   60  Florida’s Right to Farm law is preserved and a viable
   61  agricultural industry in this state can continue, NOW,
   62  THEREFORE,
   63  
   64  Be It Enacted by the Legislature of the State of Florida:
   65  
   66         Section 1. Subsections (2), (3), and (4) of section 823.14,
   67  Florida Statutes, are amended, and subsections (7), (8), and (9)
   68  are added to that section, to read:
   69         823.14 Florida Right to Farm Act.—
   70         (2) LEGISLATIVE FINDINGS AND PURPOSE.—The Legislature finds
   71  that agricultural production is a major contributor to the
   72  economy of the state; that agricultural lands constitute unique
   73  and irreplaceable resources of statewide importance; that the
   74  continuation of agricultural activities preserves the landscape
   75  and environmental resources of the state, contributes to the
   76  increase of tourism, including agritourism, and furthers the
   77  economic self-sufficiency of the people of the state; and that
   78  the encouragement, development, improvement, and preservation of
   79  agriculture will result in a general benefit to the health and
   80  welfare of the people of the state. The Legislature further
   81  finds that agricultural activities conducted on farm land in
   82  urbanizing areas are potentially subject to lawsuits based on
   83  the theory of nuisance and that these suits encourage and even
   84  force the premature removal of the farm land from agricultural
   85  use. It is the purpose of this act to protect reasonable
   86  agricultural and complementary agritourism activities conducted
   87  on farm land from nuisance suits and other similar lawsuits.
   88         (3) DEFINITIONS.—As used in this section:
   89         (a) “Agritourism activity” has the same meaning as provided
   90  in s. 570.86.
   91         (b) “Farm” means the land, buildings, support facilities,
   92  machinery, and other appurtenances used in the production of
   93  farm or aquaculture products.
   94         (c)(b) “Farm operation” means all conditions or activities
   95  by the owner, lessee, agent, independent contractor, and
   96  supplier which occur on a farm in connection with the production
   97  of farm, honeybee, or apiculture products or in connection with
   98  complementary agritourism activities. These conditions and
   99  activities include, but are and includes, but is not limited to,
  100  the marketing of produce at roadside stands or farm markets; the
  101  operation of machinery and irrigation pumps; the generation of
  102  noise, odors, dust, fumes, and particle emissions and fumes;
  103  ground or aerial seeding and spraying; the placement and
  104  operation of an apiary; the application of chemical fertilizers,
  105  conditioners, insecticides, pesticides, and herbicides;
  106  agritourism activities; and the employment and use of labor.
  107         (d)(c) “Farm product” means any plant, as defined in s.
  108  581.011, or animal or insect useful to humans and includes, but
  109  is not limited to, any product derived therefrom.
  110         (e)(d) “Established date of operation” means the date the
  111  farm operation commenced. For an agritourism activity, the term
  112  “established date of operation” means the date the specific
  113  agritourism activity commenced. If the farm operation is
  114  subsequently expanded within the original boundaries of the farm
  115  land, the established date of operation of the expansion shall
  116  also be considered as the date the original farm operation
  117  commenced. If the land boundaries of the farm are subsequently
  118  expanded, the established date of operation for each expansion
  119  is deemed to be a separate and independent established date of
  120  operation. The expanded operation shall not divest the farm
  121  operation of a previous established date of operation.
  122         (4) FARM OPERATIONS; NUISANCE FARM OPERATION NOT TO BE OR
  123  BECOME A NUISANCE.—
  124         (a) No farm operation which has been in operation for 1
  125  year or more since its established date of operation and which
  126  was not a nuisance at the time of its established date of
  127  operation shall be a public or private nuisance if the farm
  128  operation conforms to generally accepted agricultural and
  129  management practices, except that the following conditions shall
  130  constitute evidence of a nuisance:
  131         1. The presence of untreated or improperly treated human
  132  waste, garbage, offal, dead animals, dangerous waste materials,
  133  or gases which are harmful to human or animal life.
  134         2. The presence of improperly built or improperly
  135  maintained septic tanks, water closets, or privies.
  136         3. The keeping of diseased animals which are dangerous to
  137  human health, unless such animals are kept in accordance with a
  138  current state or federal disease control program.
  139         4. The presence of unsanitary places where animals are
  140  slaughtered, which may give rise to diseases which are harmful
  141  to human or animal life.
  142         (b) No farm operation shall become a public or private
  143  nuisance as a result of a change in ownership, a change in the
  144  type of farm product being produced, a change in conditions in
  145  or around the locality of the farm, or a change brought about to
  146  comply with best management practices adopted by local, state,
  147  or federal agencies if such farm has been in operation for 1
  148  year or more since its established date of operation and if it
  149  was not a nuisance at the time of its established date of
  150  operation.
  151         (c)A farm may not be held liable for a claim involving
  152  public or private nuisance, negligence, trespass, personal
  153  injury, strict liability, or other tort based on a farm
  154  operation that is alleged to cause harm outside of the farm
  155  unless the plaintiff proves by clear and convincing evidence
  156  that the claim arises out of conduct that did not comply with
  157  state and federal environmental laws, regulations, or best
  158  management practices.
  159         (d)A nuisance action may not be filed against a farm
  160  operation unless the real property affected by the conditions
  161  alleged to be a nuisance is located within one-half mile of the
  162  source of the activity or structure alleged to be a nuisance.
  163         (7)COMPENSATORY DAMAGES.—When the alleged nuisance
  164  emanated from a farm operation, the compensatory damages that
  165  may be awarded to a plaintiff for a private nuisance action must
  166  be measured by the reduction in the fair market value of the
  167  plaintiff’s property caused by the nuisance, but may not exceed
  168  the fair market value of the property.
  169         (8) PUNITIVE DAMAGES.—A plaintiff may not recover punitive
  170  damages in a private nuisance action against a farm unless:
  171         (a) The alleged nuisance is based on substantially the same
  172  conduct that resulted in a criminal conviction or a civil
  173  enforcement action by a state or federal environmental
  174  regulatory agency; and
  175         (b) The conviction or enforcement action occurred within 3
  176  years of the first act forming the basis of the nuisance action.
  177         (9)NUISANCE ACTIONS BASED ON EXISTING FARM OPERATIONS.—A
  178  plaintiff who fails to prevail in a nuisance action based on a
  179  farm operation that has been in existence for 1 year or more
  180  before the date that the action was instituted and that conforms
  181  with generally accepted agricultural and management practices or
  182  state and federal environmental laws is liable to the farm for
  183  all costs and expenses incurred in defense of the action.
  184         Section 2. Paragraphs (a) and (b) of subsection (1) of
  185  section 193.4517, Florida Statutes, are amended to read:
  186         193.4517 Assessment of agricultural equipment rendered
  187  unable to be used due to Hurricane Michael.—
  188         (1) As used in this section, the term:
  189         (a) “Farm” has the same meaning as provided in s.
  190  823.14(3)(b) s. 823.14(3)(a).
  191         (b) “Farm operation” has the same meaning as provided in s.
  192  823.14(3)(c) s. 823.14(3)(b).
  193         Section 3. Subsection (1) of section 316.5501, Florida
  194  Statutes, is amended to read:
  195         316.5501 Permitting program for combination truck tractor,
  196  semitrailer, and trailer combination coupled as a single unit
  197  subject to certain requirements.—
  198         (1) By no later than January 1, 2020, the Department of
  199  Transportation in conjunction with the Department of Highway
  200  Safety and Motor Vehicles shall develop a permitting program
  201  that, notwithstanding any other provision of law except
  202  conflicting federal law and applicable provisions of s. 316.550,
  203  prescribes the operation of any combination of truck tractor,
  204  semitrailer, and trailer combination coupled together so as to
  205  operate as a single unit in which the semitrailer and the
  206  trailer unit may each be up to 48 feet in length, but not less
  207  than 28 feet in length, if such truck tractor, semitrailer, and
  208  trailer combination is:
  209         (a) Being used for the primary purpose of transporting farm
  210  products as defined in s. 823.14(3)(d) s. 823.14(3)(c) on a
  211  prescribed route within the boundary of the Everglades
  212  Agricultural Area as described in s. 373.4592(15);
  213         (b) Traveling on a prescribed route that has been submitted
  214  to and approved by the Department of Transportation for public
  215  safety purposes having taken into account, at a minimum, the
  216  point of origin, destination, traffic and pedestrian volume on
  217  the route, turning radius at intersections along the route, and
  218  potential for damage to roadways or bridges on the route;
  219         (c) Operating only on state or local roadways within a
  220  radius of 60 miles from where such truck tractor, semitrailer,
  221  and trailer combination was loaded; however, travel is not
  222  authorized on the Interstate Highway System; and
  223         (d) Meeting the following weight limitations:
  224         1. The maximum gross weight of the truck tractor and the
  225  first trailer shall not exceed 88,000 pounds.
  226         2. The maximum gross weight of the dolly and second trailer
  227  shall not exceed 67,000 pounds.
  228         3. The maximum overall gross weight of the truck tractor
  229  semitrailer-trailer combination shall not exceed 155,000 pounds.
  230         Section 4. Paragraph (b) of subsection (16) of section
  231  633.202, Florida Statutes, is amended to read:
  232         633.202 Florida Fire Prevention Code.—
  233         (16)
  234         (b) Notwithstanding any other provision of law:
  235         1. A nonresidential farm building in which the occupancy is
  236  limited by the property owner to no more than 35 persons is
  237  exempt from the Florida Fire Prevention Code, including the
  238  national codes and Life Safety Code incorporated by reference.
  239         2. An agricultural pole barn is exempt from the Florida
  240  Fire Prevention Code, including the national codes and the Life
  241  Safety Code incorporated by reference.
  242         3. Except for an agricultural pole barn, a structure on a
  243  farm, as defined in s. 823.14(3)(b) s. 823.14(3)(a), which is
  244  used by an owner for agritourism activity, as defined in s.
  245  570.86, for which the owner receives consideration must be
  246  classified in one of the following classes:
  247         a. Class 1: A nonresidential farm building that is used by
  248  the owner 12 or fewer times per year for agritourism activity
  249  with up to 100 persons occupying the structure at one time. A
  250  structure in this class is subject to annual inspection for
  251  classification by the local authority having jurisdiction. This
  252  class is not subject to the Florida Fire Prevention Code but is
  253  subject to rules adopted by the State Fire Marshal pursuant to
  254  this section.
  255         b. Class 2: A nonresidential farm building that is used by
  256  the owner for agritourism activity with up to 300 persons
  257  occupying the structure at one time. A structure in this class
  258  is subject to annual inspection for classification by the local
  259  authority having jurisdiction. This class is not subject to the
  260  Florida Fire Prevention Code but is subject to rules adopted by
  261  the State Fire Marshal pursuant to this section.
  262         c. Class 3: A structure or facility that is used primarily
  263  for housing, sheltering, or otherwise accommodating members of
  264  the general public. A structure or facility in this class is
  265  subject to annual inspection for classification by the local
  266  authority having jurisdiction. This class is subject to the
  267  Florida Fire Prevention Code.
  268         Section 5. Paragraph (g) of subsection (1) of section
  269  812.015, Florida Statutes, is amended to read:
  270         812.015 Retail and farm theft; transit fare evasion;
  271  mandatory fine; alternative punishment; detention and arrest;
  272  exemption from liability for false arrest; resisting arrest;
  273  penalties.—
  274         (1) As used in this section:
  275         (g) “Farm theft” means the unlawful taking possession of
  276  any items that are grown or produced on land owned, rented, or
  277  leased by another person. The term includes the unlawful taking
  278  possession of equipment and associated materials used to grow or
  279  produce farm products as defined in s. 823.14(3)(d) s.
  280  823.14(3)(c).
  281         Section 6. For the purpose of incorporating the amendments
  282  made by this act to section 823.14, Florida Statutes, in a
  283  reference thereto, paragraph (b) of subsection (2) of section
  284  163.3162, Florida Statutes, is reenacted to read:
  285         163.3162 Agricultural Lands and Practices.—
  286         (2) DEFINITIONS.—As used in this section, the term:
  287         (b) “Farm operation” has the same meaning as provided in s.
  288  823.14.
  289         Section 7. For the purpose of incorporating the amendments
  290  made by this act to section 823.14, Florida Statutes, in a
  291  reference thereto, paragraph (b) of subsection (3) of section
  292  163.3163, Florida Statutes, is reenacted to read:
  293         163.3163 Applications for development permits; disclosure
  294  and acknowledgment of contiguous sustainable agricultural land.—
  295         (3) As used in this section, the term:
  296         (b) “Farm operation” has the same meaning as defined in s.
  297  823.14.
  298         Section 8. For the purpose of incorporating the amendments
  299  made by this act to section 823.14, Florida Statutes, in a
  300  reference thereto, subsection (4) of section 403.9337, Florida
  301  Statutes, is reenacted to read:
  302         403.9337 Model Ordinance for Florida-Friendly Fertilizer
  303  Use on Urban Landscapes.—
  304         (4) This section does not apply to the use of fertilizer on
  305  farm operations as defined in s. 823.14 or on lands classified
  306  as agricultural lands pursuant to s. 193.461.
  307         Section 9. For the purpose of incorporating the amendments
  308  made by this act to section 823.14, Florida Statutes, in a
  309  reference thereto, subsection (4) of section 570.86, Florida
  310  Statutes, is reenacted to read:
  311         570.86 Definitions.—As used in ss. 570.85-570.89, the term:
  312         (4) “Farm operation” has the same meaning as in s. 823.14.
  313         Section 10. This act shall take effect July 1, 2021.