Bill Text: FL S0088 | 2021 | Regular Session | Comm Sub

NOTE: There are more recent revisions of this legislation. Read Latest Draft

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Bill Title: Farming Operations

Spectrum: Bipartisan Bill

Status: (Passed) 2021-04-30 - Chapter No. 2021-7 [S0088 Detail]

Download: Florida-2021-S0088-Comm_Sub.html

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       Florida Senate - 2021                 CS for CS for CS for SB 88
       
       
        
       By the Committees on Rules; Environment and Natural Resources;
       and Judiciary; and Senators Brodeur, Baxley, Albritton, and
       Perry
       
       
       
       595-02410-21                                            202188c3
    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         and redefining terms; prohibiting farms from being
    5         held liable for nuisance except under certain
    6         circumstances; providing a burden of proof;
    7         prohibiting nuisance actions from being filed against
    8         farm operations unless specified conditions are met;
    9         providing requirements for and limitations on damages;
   10         providing that plaintiffs who bring nuisance actions
   11         against farm operations are liable for certain costs
   12         and expenses under certain conditions; amending ss.
   13         193.4517, 316.5501, 633.202, and 812.015, F.S.;
   14         conforming cross-references; reenacting ss.
   15         163.3162(2)(b), 163.3163(3)(b), 403.9337(4), and
   16         570.86(4), F.S., relating to agricultural lands and
   17         practices, applications for development permits and
   18         disclosure and acknowledgment of contiguous
   19         sustainable agricultural land, Model Ordinance for
   20         Florida-Friendly Fertilizer Use on Urban Landscapes,
   21         and definitions relating to agritourism, respectively,
   22         to incorporate the amendments made by this act to s.
   23         823.14, F.S., in references thereto; providing an
   24         effective date.
   25  
   26         WHEREAS, all 50 U.S. states have enacted “Right to Farm”
   27  laws that protect farmers and ranchers from nuisance lawsuits
   28  filed by individuals who move into a rural area where normal
   29  farming operations exist and then use legal actions to stop or
   30  interfere with ongoing farming operations, and
   31         WHEREAS, Florida’s Right to Farm legislation was enacted in
   32  1979 to protect agricultural operations from these types of
   33  actions and is in need of updating, and
   34         WHEREAS, as our state continues to experience unprecedented
   35  growth and as residential development continues to encroach upon
   36  our rural areas, there is a possibility for increased complaints
   37  regarding farming practices approved by the Department of
   38  Environmental Protection and the Department of Agriculture and
   39  Consumer Services, such as harvesting, transporting crops, and
   40  conducting controlled burning, despite the use of best
   41  management practices, and
   42         WHEREAS, because of the COVID-19 pandemic, there is an
   43  increasing exodus from more densely populated areas from both
   44  within and outside this state into our rural communities,
   45  potentially creating conflicts with existing legal farming
   46  activities and their complementary agritourism activities, and
   47         WHEREAS, there is a longstanding tradition of using
   48  agritourism activities, such as hayrides, corn mazes, winery
   49  tours, and farm festivals, to supplement income received from
   50  growing crops and raising farm animals, and
   51         WHEREAS, ensuring the potential for revenues from
   52  agritourism activities is necessary to preserve farms and the
   53  rural character of many areas in the face of rising costs and
   54  foreign competition and the many uncertainties associated with
   55  growing crops and raising farm animals, and
   56         WHEREAS, it is timely and prudent to modernize the Florida
   57  Right to Farm Act by clarifying definitions, standing, and
   58  procedures in order to ensure that the original intent of
   59  Florida’s Right to Farm law is preserved and a viable
   60  agricultural industry in this state can continue, NOW,
   61  THEREFORE,
   62  
   63  Be It Enacted by the Legislature of the State of Florida:
   64  
   65         Section 1. Subsections (2), (3), and (4) of section 823.14,
   66  Florida Statutes, are amended, and subsections (7), (8), and (9)
   67  are added to that section, to read:
   68         823.14 Florida Right to Farm Act.—
   69         (2) LEGISLATIVE FINDINGS AND PURPOSE.—The Legislature finds
   70  that agricultural production is a major contributor to the
   71  economy of the state; that agricultural lands constitute unique
   72  and irreplaceable resources of statewide importance; that the
   73  continuation of agricultural activities preserves the landscape
   74  and environmental resources of the state, contributes to the
   75  increase of tourism, including agritourism, and furthers the
   76  economic self-sufficiency of the people of the state; and that
   77  the encouragement, development, improvement, and preservation of
   78  agriculture will result in a general benefit to the health and
   79  welfare of the people of the state. The Legislature further
   80  finds that agricultural activities conducted on farm land in
   81  urbanizing areas are potentially subject to lawsuits based on
   82  the theory of nuisance and that these suits encourage and even
   83  force the premature removal of the farm land from agricultural
   84  use. It is the purpose of this act to protect reasonable
   85  agricultural and complementary agritourism activities conducted
   86  on farm land from nuisance suits and other similar lawsuits.
   87         (3) DEFINITIONS.—As used in this section:
   88         (a) “Agritourism activity” has the same meaning as provided
   89  in s. 570.86.
   90         (b) “Farm” means the land, buildings, support facilities,
   91  machinery, and other appurtenances used in the production of
   92  farm or aquaculture products.
   93         (c)(b) “Farm operation” means all conditions or activities
   94  by the owner, lessee, agent, independent contractor, and
   95  supplier which occur on a farm in connection with the production
   96  of farm, honeybee, or apiculture products or in connection with
   97  complementary agritourism activities. These conditions and
   98  activities include, but are and includes, but is not limited to,
   99  the marketing of produce at roadside stands or farm markets; the
  100  operation of machinery and irrigation pumps; the generation of
  101  noise, odors, dust, fumes, and particle emissions and fumes;
  102  ground or aerial seeding and spraying; the placement and
  103  operation of an apiary; the application of chemical fertilizers,
  104  conditioners, insecticides, pesticides, and herbicides;
  105  agritourism activities; and the employment and use of labor.
  106         (d)(c) “Farm product” means any plant, as defined in s.
  107  581.011, or animal or insect useful to humans and includes, but
  108  is not limited to, any product derived therefrom.
  109         (e)(d) “Established date of operation” means the date the
  110  farm operation commenced. For an agritourism activity, the term
  111  “established date of operation” means the date the specific
  112  agritourism activity commenced. If the farm operation is
  113  subsequently expanded within the original boundaries of the farm
  114  land, the established date of operation of the expansion shall
  115  also be considered as the date the original farm operation
  116  commenced. If the land boundaries of the farm are subsequently
  117  expanded, the established date of operation for each expansion
  118  is deemed to be a separate and independent established date of
  119  operation. The expanded operation shall not divest the farm
  120  operation of a previous established date of operation.
  121         (f) “Nuisance” means any interference with reasonable use
  122  and enjoyment of land, including, but not limited to, noise,
  123  smoke, odors, dust, fumes, particle emissions, or vibration. The
  124  term also includes all claims that meet the requirements of this
  125  definition, regardless of whether the plaintiff designates those
  126  claims as brought in nuisance, negligence, trespass, personal
  127  injury, strict liability, or other tort.
  128         (4) FARM OPERATIONS; NUISANCE FARM OPERATION NOT TO BE OR
  129  BECOME A NUISANCE.—
  130         (a) No farm operation which has been in operation for 1
  131  year or more since its established date of operation and which
  132  was not a nuisance at the time of its established date of
  133  operation shall be a public or private nuisance if the farm
  134  operation conforms to generally accepted agricultural and
  135  management practices, except that the following conditions shall
  136  constitute evidence of a nuisance:
  137         1. The presence of untreated or improperly treated human
  138  waste, garbage, offal, dead animals, dangerous waste materials,
  139  or gases which are harmful to human or animal life.
  140         2. The presence of improperly built or improperly
  141  maintained septic tanks, water closets, or privies.
  142         3. The keeping of diseased animals which are dangerous to
  143  human health, unless such animals are kept in accordance with a
  144  current state or federal disease control program.
  145         4. The presence of unsanitary places where animals are
  146  slaughtered, which may give rise to diseases which are harmful
  147  to human or animal life.
  148         (b) No farm operation shall become a public or private
  149  nuisance as a result of a change in ownership, a change in the
  150  type of farm product being produced, a change in conditions in
  151  or around the locality of the farm, or a change brought about to
  152  comply with best management practices adopted by local, state,
  153  or federal agencies if such farm has been in operation for 1
  154  year or more since its established date of operation and if it
  155  was not a nuisance at the time of its established date of
  156  operation.
  157         (c) A farm may not be held liable for nuisance unless the
  158  plaintiff proves by clear and convincing evidence that the claim
  159  arises out of conduct that did not comply with state or federal
  160  environmental laws, regulations, or best management practices.
  161         (d) A nuisance action may not be filed against a farm
  162  operation unless the real property affected by the conditions
  163  alleged to be a nuisance is located within one-half mile of the
  164  source of the activity or structure alleged to be a nuisance.
  165         (7) COMPENSATORY DAMAGES.—When the alleged nuisance
  166  emanated from a farm operation, the compensatory damages that
  167  may be awarded to a plaintiff for a private nuisance action must
  168  be measured by the reduction in the fair market value of the
  169  plaintiff’s property caused by the nuisance, but may not exceed
  170  the fair market value of the property.
  171         (8) PUNITIVE DAMAGES.—A plaintiff may not recover punitive
  172  damages in a private nuisance action against a farm unless:
  173         (a) The alleged nuisance is based on substantially the same
  174  conduct that resulted in a criminal conviction or a civil
  175  enforcement action by a state or federal environmental
  176  regulatory agency; and
  177         (b) The conviction or enforcement action occurred within 3
  178  years of the first act forming the basis of the nuisance action.
  179         (9) NUISANCE ACTIONS BASED ON EXISTING FARM OPERATIONS.—A
  180  plaintiff who fails to prevail in a nuisance action based on a
  181  farm operation that has been in existence for 1 year or more
  182  before the date that the action was instituted and that conforms
  183  with generally accepted agricultural and management practices or
  184  state and federal environmental laws is liable to the farm for
  185  all costs and expenses incurred in defense of the action.
  186         Section 2. Paragraphs (a) and (b) of subsection (1) of
  187  section 193.4517, Florida Statutes, are amended to read:
  188         193.4517 Assessment of agricultural equipment rendered
  189  unable to be used due to Hurricane Michael.—
  190         (1) As used in this section, the term:
  191         (a) “Farm” has the same meaning as provided in s.
  192  823.14(3)(b) s. 823.14(3)(a).
  193         (b) “Farm operation” has the same meaning as provided in s.
  194  823.14(3)(c) s. 823.14(3)(b).
  195         Section 3. Subsection (1) of section 316.5501, Florida
  196  Statutes, is amended to read:
  197         316.5501 Permitting program for combination truck tractor,
  198  semitrailer, and trailer combination coupled as a single unit
  199  subject to certain requirements.—
  200         (1) By no later than January 1, 2020, the Department of
  201  Transportation in conjunction with the Department of Highway
  202  Safety and Motor Vehicles shall develop a permitting program
  203  that, notwithstanding any other provision of law except
  204  conflicting federal law and applicable provisions of s. 316.550,
  205  prescribes the operation of any combination of truck tractor,
  206  semitrailer, and trailer combination coupled together so as to
  207  operate as a single unit in which the semitrailer and the
  208  trailer unit may each be up to 48 feet in length, but not less
  209  than 28 feet in length, if such truck tractor, semitrailer, and
  210  trailer combination is:
  211         (a) Being used for the primary purpose of transporting farm
  212  products as defined in s. 823.14(3)(d) s. 823.14(3)(c) on a
  213  prescribed route within the boundary of the Everglades
  214  Agricultural Area as described in s. 373.4592(15);
  215         (b) Traveling on a prescribed route that has been submitted
  216  to and approved by the Department of Transportation for public
  217  safety purposes having taken into account, at a minimum, the
  218  point of origin, destination, traffic and pedestrian volume on
  219  the route, turning radius at intersections along the route, and
  220  potential for damage to roadways or bridges on the route;
  221         (c) Operating only on state or local roadways within a
  222  radius of 60 miles from where such truck tractor, semitrailer,
  223  and trailer combination was loaded; however, travel is not
  224  authorized on the Interstate Highway System; and
  225         (d) Meeting the following weight limitations:
  226         1. The maximum gross weight of the truck tractor and the
  227  first trailer shall not exceed 88,000 pounds.
  228         2. The maximum gross weight of the dolly and second trailer
  229  shall not exceed 67,000 pounds.
  230         3. The maximum overall gross weight of the truck tractor
  231  semitrailer-trailer combination shall not exceed 155,000 pounds.
  232         Section 4. Paragraph (b) of subsection (16) of section
  233  633.202, Florida Statutes, is amended to read:
  234         633.202 Florida Fire Prevention Code.—
  235         (16)
  236         (b) Notwithstanding any other provision of law:
  237         1. A nonresidential farm building in which the occupancy is
  238  limited by the property owner to no more than 35 persons is
  239  exempt from the Florida Fire Prevention Code, including the
  240  national codes and Life Safety Code incorporated by reference.
  241         2. An agricultural pole barn is exempt from the Florida
  242  Fire Prevention Code, including the national codes and the Life
  243  Safety Code incorporated by reference.
  244         3. Except for an agricultural pole barn, a structure on a
  245  farm, as defined in s. 823.14(3)(b) s. 823.14(3)(a), which is
  246  used by an owner for agritourism activity, as defined in s.
  247  570.86, for which the owner receives consideration must be
  248  classified in one of the following classes:
  249         a. Class 1: A nonresidential farm building that is used by
  250  the owner 12 or fewer times per year for agritourism activity
  251  with up to 100 persons occupying the structure at one time. A
  252  structure in this class is subject to annual inspection for
  253  classification by the local authority having jurisdiction. This
  254  class is not subject to the Florida Fire Prevention Code but is
  255  subject to rules adopted by the State Fire Marshal pursuant to
  256  this section.
  257         b. Class 2: A nonresidential farm building that is used by
  258  the owner for agritourism activity with up to 300 persons
  259  occupying the structure at one time. A structure in this class
  260  is subject to annual inspection for classification by the local
  261  authority having jurisdiction. This class is not subject to the
  262  Florida Fire Prevention Code but is subject to rules adopted by
  263  the State Fire Marshal pursuant to this section.
  264         c. Class 3: A structure or facility that is used primarily
  265  for housing, sheltering, or otherwise accommodating members of
  266  the general public. A structure or facility in this class is
  267  subject to annual inspection for classification by the local
  268  authority having jurisdiction. This class is subject to the
  269  Florida Fire Prevention Code.
  270         Section 5. Paragraph (g) of subsection (1) of section
  271  812.015, Florida Statutes, is amended to read:
  272         812.015 Retail and farm theft; transit fare evasion;
  273  mandatory fine; alternative punishment; detention and arrest;
  274  exemption from liability for false arrest; resisting arrest;
  275  penalties.—
  276         (1) As used in this section:
  277         (g) “Farm theft” means the unlawful taking possession of
  278  any items that are grown or produced on land owned, rented, or
  279  leased by another person. The term includes the unlawful taking
  280  possession of equipment and associated materials used to grow or
  281  produce farm products as defined in s. 823.14(3)(d) s.
  282  823.14(3)(c).
  283         Section 6. For the purpose of incorporating the amendments
  284  made by this act to section 823.14, Florida Statutes, in a
  285  reference thereto, paragraph (b) of subsection (2) of section
  286  163.3162, Florida Statutes, is reenacted to read:
  287         163.3162 Agricultural Lands and Practices.—
  288         (2) DEFINITIONS.—As used in this section, the term:
  289         (b) “Farm operation” has the same meaning as provided in s.
  290  823.14.
  291         Section 7. For the purpose of incorporating the amendments
  292  made by this act to section 823.14, Florida Statutes, in a
  293  reference thereto, paragraph (b) of subsection (3) of section
  294  163.3163, Florida Statutes, is reenacted to read:
  295         163.3163 Applications for development permits; disclosure
  296  and acknowledgment of contiguous sustainable agricultural land.—
  297         (3) As used in this section, the term:
  298         (b) “Farm operation” has the same meaning as defined in s.
  299  823.14.
  300         Section 8. For the purpose of incorporating the amendments
  301  made by this act to section 823.14, Florida Statutes, in a
  302  reference thereto, subsection (4) of section 403.9337, Florida
  303  Statutes, is reenacted to read:
  304         403.9337 Model Ordinance for Florida-Friendly Fertilizer
  305  Use on Urban Landscapes.—
  306         (4) This section does not apply to the use of fertilizer on
  307  farm operations as defined in s. 823.14 or on lands classified
  308  as agricultural lands pursuant to s. 193.461.
  309         Section 9. For the purpose of incorporating the amendments
  310  made by this act to section 823.14, Florida Statutes, in a
  311  reference thereto, subsection (4) of section 570.86, Florida
  312  Statutes, is reenacted to read:
  313         570.86 Definitions.—As used in ss. 570.85-570.89, the term:
  314         (4) “Farm operation” has the same meaning as in s. 823.14.
  315         Section 10. This act shall take effect July 1, 2021.