Florida Right to Farm Bill
The Florida legislature has proposed two bills, HB 1601 and SB 88, to strengthen protections provided by the current Florida Right to Farm statute, available here, and to include agritourism operations within the scope of the protection. Specifically, the bills would include agritourism operations under the protection of the right to farm statute, broaden the definition of nuisance to include all claims that meet the requirements of a nuisance action even if a different tort is alleged, strengthen the burden of proof needed to prove a nuisance claim, limit potential plaintiffs to those located within one-half mile of the source of the alleged nuisance, cap potential damages and award attorney fees.
All fifty states have enacted right to farm statutes that intend to protect qualifying farmers and ranchers from nuisance litigation filed by their neighbors. Right to Farm statutes traditionally protect against nuisance lawsuits brought by neighbors that are affected by odor, lights, noise, dust, or other things that can create a substantial and ongoing interference with the neighbor’s use and enjoyment of their property. The language and the level of protection provided by the right to farm statute can vary significantly between the states. States with a strong agricultural sector tend to have stronger right to farm statutes than other states; however, there are exceptions and states amend their right to farm statutes from time to time. State legislatures amending right to farm statutes is nothing new. In fact, several states besides Florida have pending legislation that would amend their current right to farm statutes. Some of those states include Arizona, Indiana, New Jersey and West Virginia.
The Florida Right to Farm Bills
The language in both bills is virtually identical for both the agritourism and right to farm sections within the proposals and it appears that SB 88 will be the version moving forward. The Florida legislation proposes several changes that other states, such as North Carolina, have adopted in the past couple of years, and it has added several additional changes that appear to be unique. The changes are discussed in the order that they appear in SB 88.
Adding in Agritourism
One unique aspect is including agritourism into the Florida Right to Farm Act. The definition of what constitutes an agritourism activity is incorporated from the Florida Agritourism statute available here. Agritourism is inserted into the definitions of “farm operation” and “established date of operation” which are both critical definitions found within the current version of the Florida Right to Farm Statute and help to establish if a farm operation is entitled to nuisance protection and when that protection would apply.
Amending the Definition of Nuisance
A substantial change to the Florida Right to Farm statute would be adding a broad definition of nuisance. In SB 88, the new definition not only defines what constitutes a nuisance, but it also includes other types of tort actions in the protection where the claims meet the requirements of the new definition of nuisance. Section 3 of SB 88 would add this definition of nuisance:
(f) “Nuisance” means any interference with reasonable use and enjoyment of land, including, but not limited to, noise, smoke, odors, dust, fumes, particle emissions, or vibration. The term also includes all claims that meet the requirements of this definition, regardless of whether the plaintiff designates those claims as brought in nuisance, negligence, trespass, personal injury, strict liability, or other tort.
Typical right to farm statutes provide liability protection for the tort of nuisance, but do not protect against lawsuits brought under other tort claims such as trespass and negligence. The proposed bill not only defines nuisance, but it also provides protection against an array of other tort actions so long as the claims would “meet the requirements of this definition.” This language represents a substantial change not found in any other current right to farm statute.
Strengthening the Burden of Proof and Limiting the Scope of Who can Sue
Another addition found in SB 88 would change the legal requirements for a complaining neighbor to bring a successful lawsuit. The burden of proof in most civil cases, such as a nuisance action, is the preponderance of the evidence standard. Simply put, this means that the plaintiff bringing the lawsuit must convince the court or the jury that slightly more evidence is in their favor (51% vs. 49%). In shifting the burden of proof to “clear and convincing evidence that the claim arises out of conduct that did not comply with state or federal environmental laws, regulations, or best management practices” it not only raises the burden of proof, but will also require plaintiffs to tie the defendant’s conduct to a violation of an environmental law or a best management practice.
Another potential change is limiting potential plaintiffs by only allowing plaintiffs to sue for nuisance if they are located within one-half mile of the source of the alleged nuisance.
Recent changes in state right to farm statutes, such as North Carolina, Oklahoma, and West Virginia, have included provisions to limit potential damages when a plaintiff prevails in a nuisance lawsuit against a farming operation. Florida has included a similar provision in SB 88. Damages in a civil lawsuit, such as a nuisance lawsuit, are typically awarded under one or two theories. The standard award is compensatory damages, which compensate the plaintiff for any actual losses caused by the defendant’s actions or inactions. Punitive damages are awarded in Florida in some cases where there was intentional misconduct or gross negligence.
SB 88, if enacted, will cap compensatory damages at the reduction of the fair market value of the property and such damages cannot exceed the fair market value of the property. It will also modify the ability to award punitive damages only when the farm in question has been subject to a civil enforcement judgment or criminal conviction within the past three years and the judgement or conviction forms the basis of the nuisance lawsuit.
Attorney Fees and Other Costs
The last substantial change to the Florida Right to Farm statute deals with the awarding of attorney fees. In the American legal system, each side of a lawsuit is generally responsible for the payment of their own legal fees; however, this can be modified by statute, or courts may award costs for frivolous litigation. SB 88 modifies this tenent by requiring the plaintiff to pay the legal costs of the farming operation in certain circumstances. If a plaintiff sues a farm operation that has been in existence for one year or more and the farming operation either conforms to generally accepted agricultural management practices or “state and federal environmental laws” then the plaintiff is “liable to the farm for all costs, fees, and expenses incurred in defense of the action.”
All fifty states have a right to farm statute; however, the statutes often do not remain static. Changes to state right to farm statutes occur on a regular basis and these changes can impact other states that are ether in the process of updating their statute or are considering an update in the near future. SB 88 incorporates language from other recently amended right to farm statutes, such as North Carolina, and adds in new aspects such as agritourism and an expanded definition of torts that the bill could provide protection against.
State right to farm statutes are among the most frequent questions that are received at the National Agricultural Law Center. For more information, please contact Senior Staff Attorney Rusty Rumley here.