Ask Me: Episode 1 of Season 2

In this "Ask Me" episode, agricultural attorney Amanda Carl answers questions submitted by listeners. Topics in this episode include Florida's agritourism laws and the Florida Right to Farm Act.  This episode contains such great content- make sure you check it out!

Transcript

SPEAKER_00 0:18

Welcome to the Legal Field Podcast, where we discuss legal and regulatory topics that are of critical importance to the agriculture industry. My name is Amanda Perry Carl, and I am an agricultural lawyer whose family has been farming in Florida since 1823, before Florida even became a state. I have spent almost 20 years as an attorney in the agricultural industry and have made it my mission to ensure that everyone in our incredible industry understands the legal and regulatory issues that we face so that we can keep feeding Florida, America, and the world. So if you're a farmer, rancher, or grower, if you are involved in raising cattle, sheep, poultry, goats, hogs, horses, or other livestock, if you grow fruits, vegetables, or sod, if you are involved with the aquaculture, turf grass, or horticulture industries, if you are fighting the good fight to help our citrus industry survive, or if you just like to eat and you appreciate our ag producers, this podcast is for you. If you are interested in protecting and preserving our agricultural heritage, lands, and way of life, then come join us in the legal field and see what's growing on. Welcome to our January Ask Me episode of the Legal Field Podcast. These Ask Me episodes air once a month, and on these episodes, I try my best to answer all of your questions. If you have any questions that you would like for me to answer during an ask me segment, please email them to me at amanda at floridaaglaw.com. That's Amanda at S L O R I D A A G L A W dot com. Now before we get started with this ask me episode, I have to provide some legal disclaimers. The information provided in this podcast is for general informational purposes only and does not constitute legal advice. It is not intended to create any relationship, it does not constitute an attorney-client relationship, and you should not ask upon any information provided without seeking professional legal counsel tailored to your specific situation. We recommend consulting with an attorney for advice in any particular legal matter. So now that that stuff is out of the way, some of our listeners have submitted some really great questions again this month, and I'm going to take some time to answer a couple of those questions here today. I received a lot of questions over the last month or so regarding agro tourism laws in Florida. So I wanted to give a little bit of an overview on these laws, including some history of the law. Now, Florida's agro tourism laws can be found in sections 570.85 through 570.89 of the Florida statutes. These provisions were first adopted in 2013 and they have been amended since the time of their original adoption. To start with, section 570.85 subsection one states that, quote, it is the intent of the legislature to promote agritourism as a way to support bona fide agricultural production by providing a stream of revenue and by educating the general public about the agricultural industry. It is also the intent of the legislature to eliminate duplication of regulatory authority over agritourism as expressed in this section. So this section originally read it is the intent of the legislature to promote agritourism as a way to support bona fide agricultural production by providing a second stream of revenue. The word second was removed in 2022 by the legislature, thereby removing a requirement that agritourism be a secondary stream of revenue for bona fide ag operation. This opens up great opportunities for ag tourism by the removal of that word second. If you listen to my past Ask Me episodes of this podcast, you will recall that we have talked about the ag tax classification on a prior episode. Well, these 2022 amendments to the agritourism statutes also clarify that an agricultural land classification may not be denied or revoked solely due to the conduct of agritourism on a bona fide farm or due to the construction, alteration, or maintenance of a non-residential farm building structure or facility on a bona fide farm, which is used to conduct agro tourism activities. So again, in these 2022 amendments, the legislature really opened up opportunities for the agritourism industry, which is great for the entire ag industry and the protection of our farmlands here in Florida. Now let's talk for a minute about how the statutes define an agritourism activity. So the statutes provide an agro tourism activity as any agricultural related activity consistent with the bona side farm, livestock operation, or ranch, or in a working forest which allows members of the general public for recreational, entertainment, or educational purposes, to view or enjoy activities, including farming, ranching, historical, cultural, civic, ceremonial, training, and exhibition, or harvest your own activities and attractions. An agritourism activity does not include the construction of new or additional structures or facilities intended primarily to house, shelter, transport, or otherwise accommodate members of the general public. An activity is an agritourism activity regardless of whether the participant paid to participate in the activity. So you see again, that is a pretty a pretty broad definition. So an agritourism operation as defined in the statutes is afforded limit limited liability under these statutes so long as the operation meets the standards and requirements set forth here in chapter 570, which lays out everything for agritourism. And this includes posting of a specific notice of risk on the property that has to be posted at any agritourism operation. You may have seen these signs when you have visited different agritourism operations. And I'm sure that many of you listeners have visited visited some of these great agritourism operations that we have in Florida. Examples include UPIC fields and petting zoos, wedding venues, RV parks, and more. So if you want to know more about agrotourism, what is offered here in the state of Florida, whether that's where to visit, how to start an agritourism operation, or more, please feel free to reach out to me. I have also received a lot of questions recently about Florida's Right to Farm Act. Now there's a lot to unpack with the Florida Right to Farm Act, and so I want to give a bit of an overview on the Act along with a few details of it. Now the Florida Right to Farm Act Farm Act is found in section 823.14 of the Florida Statutes. When you break it down, there are really two parts to the Right to Farm Act here in Florida. One of those is protection of farmers from nuisance lawsuits by members of the public and then protection from regulations by local governments. Now let's talk briefly about that first part, the protection of ag operations from nuisance lawsuits. This part regulates how and when a person can bring a private nuisance claim against a neighboring farming operation. Now the act gives those farming operations that are facing a nuisance lawsuit a defense. Basically, when someone sues a neighboring farm, the farm can use the right to farm defense. And to succeed on a right to farm defense, the farmer must meet a few criteria. The clear language of the Flora Right to Farm Act states that the defense is available to farm operations, which has a definition that's defined as, quote, all conditions or activities by the owner, lessee, agent, independent contractor, and supplier which occur on a farm in connection with the production of farm, honeybee, or apiculture products, and includes but is not limited to the marketing of produce at roadside stands or farm markets, the operation of machinery and irrigation pumps, the generation of noise, odors, dust, and fumes, ground or aerial seeding and spraying, the placement and operation of an apiary, the application of chemical fertilizers, conditioners, insecticides, pesticides, and herbicides, and the employment and use of labor. So we all know this can tend this could be a potential problem in Florida if we didn't have this right to farm defense, as we have a lot of development that goes up around a lot of these farmlands. This is really huge as it means that the right to farm defense is available to more farms than just bona fide ag operations as defined in the Greenbelt Law or the Ag Tax Classification, as it's also called. So this definition provided for allowance of this right to farm defense to nuisance lawsuits is broader than the definition of bona fide ag operations under the ag tax classification statute. According to that statute, a quote, bona fide farm operation is a farm operation that is engaged in good faith commercial agricultural use of land on land that has been classified as agricultural. So although the definition of farm operation is quite broad, there are some limitations on the defense. By way of example, the farm must have been in operation for more than one year at the time of the lawsuit. And the farm also must not have been a nuisance when it began its operation, and the farm must comply with generally accepted agricultural and management practices. Now, note, it does not say the Florida Department of Ag and Consumer Services BMPs or best management practices. It just says generally accepted ag and management practices. Now the second part of the Right to Farm Act, we talked about the protection from nuisance from members of the public, this one relates to government. And this provides protection for farmers from the overreach of local governments. The statute provides that, quote, except as otherwise provided for in this section, in section 486 487 plate 051, and notwithstanding any other provision of law, a local government may not adopt any ordinance, regulation, rule, or policy to prohibit, restrict, regulate, or otherwise limit an activity of a bona fide farm operation on land classified as agricultural land pursuant to 193.461, where such activity is regulated through implemented best management practices or interim measures developed by the Florida Department of Environmental Protection or Department of Agriculture and Consumer Services or water management districts and adopted under Chapter 120 as part of a statewide or regional program. Basically, this provides some protection for farmers to prevent local governments from regulating on top of what is already being regulated at the state level. For example, what is already being regulated in Florida Department of Ag and Consumer Services, BMP manuals or interim measures by the Florida Department of Ag and Consumer Services. So in short, if there's a bona fide ag operation and the state's already regulating an activity on that bona fide ag operation, then a local government cannot provide additional regulations, rules, or limitations on such activity. Now there are some local governments that we have seen attempting to regulate activities on bona fide ag operations that are already being regulated at the state level in violation of the Florida Right to Farm Bill. And we must all protect the rights of our farmers under the Florida Right to Farm Act when this happens. Now that's all the time that I have today for our ask me episode. But if you have any other questions or topics that you want me to address in the next episode, which will be the second Thursday of February, please feel free to email those to me at Amanda at Floridaaglaw.com. Thanks and have a blessed day. Thank you for listening to the Legal Field Podcast. For more content, please visit the Facebook page of Florida Ag Law or go to Floridaaglaw.com and join us next time on the Legal Field Podcast to see what's going on.