Florida’s Amended Right to Farm Law Goes into Effect July 1
As of July 1, 2021, Florida has a new Right to Farm Act (RTFA). On April 30, 2021, Governor DeSantis of Florida signed SB 88 into law, amending Florida’s RTFA in several ways. See Fla. Stat. § 823.14. Concerned with the COVID-19 pandemic encouraging urban sprawl into rural areas, the new law seeks to provide stronger protection against nuisance lawsuits for producers who comply with government regulation and best management practices.
First, SB 88 amends the definition of a “farm operation” to include “agritourism activities.” Under this provision, activities such as hayrides, corn mazes, and winery tours, will receive the same nuisance lawsuit protection as traditional farming activities. The definition is further amended to add the generation of “particle emissions” to the list of protected farm activities. The legislature made this change in response to a 2020 federal court decision that found that the Florida RTFA did not protect farmers from claims involving dangerous pollutants created by pre-harvest burning of sugar. Coffie v. Florida Crystals Corporation, 460 F. Supp. 3d 1297 (S.D. Fla. 2020).
The new law includes a definition for “nuisance,” which 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 is further defined to include “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.”
The inclusion of other causes of action in the definition of nuisance should prevent a situation like that recently arising in the North Carolina Murphy Brown litigation. In March 2021, a federal judge from the Eastern District of North Carolina found that the state’s RTFA only bars nuisance lawsuits against agricultural operators if the action is not brought within one year of the operation’s establishment. North Carolina’s RTFA specifically excludes claims of negligence and trespass from protection under the law. Therefore, the plaintiff’s negligence and trespass claims were not precluded. Barden v. Murphy Brown, LLC, 2021 WL 965915 (E.D.N.C. March 15, 2021); see also Himsel v. Himsel, 122 N.E.3d 935, 945 (Ind. Ct. App. 2019).
Burden of Proof
The new law also requires that a plaintiff show by “clear and convincing evidence” that the alleged nuisance does not comply with state or federal environmental laws, regulations, or best management practices. This burden of proof is stricter than the “preponderance of the evidence” standard, but less strict than the “beyond a reasonable doubt” standard used in criminal cases.
Florida lawmakers also amended the RTFA to limit compensatory damages to the reduction in fair market value of the property affected by the nuisance. Additionally, a plaintiff cannot recover punitive damages unless the nuisance action has resulted in criminal enforcement or an environmental violation by a government agency within the last three years.
Under the amended law, a plaintiff can only bring a lawsuit if the affected property is within a half mile of the alleged nuisance. If a plaintiff unsuccessfully brings a nuisance lawsuit against a compliant farming operation that has been in operation for over a year, that losing plaintiff will be liable for all costs, fees and expenses incurred during litigation.
The Center for Agricultural Law and Taxation does not provide legal advice. Any information provided on this website is not intended to be a substitute for legal services from a competent professional. The Center's work is supported by fee-based seminars and generous private gifts. Any opinions, findings, conclusions or recommendations expressed in the material contained on this website do not necessarily reflect the views of Iowa State University.