2021 Amendments to Florida’s Right to Farm Act: Farmers Benefit Big Against Nuisance Claims

Florida’s Right to Farm Act, Florida Statutes 823.14, is one of many laws around the country meant to protect farmers from encroaching development. Enacted in 1979, the Act shielded certain agricultural activities from not-so-neighborly litigation–namely, nuisance-type claims alleging injury for odors, waste overflow, or noise.

Essentially, the Act codified the idea that you can’t be heard to complain if you move toward a nuisance. Especially where heavily-protected agriculture is concerned. So if the farm operation had existed for over a year, the nuisance claim was more-or-less barred.

Over time, however, clever neighbors and their attorneys had relative success working around these protections, and as new agricultural practices developed, Fla. Stat. 823.14 began to show its age. In line with similar amendments across the country, egg farmer and Senate President Wilton Simpson spearheaded SB 88 during the 2021 legislative session, and will go into effect July 1, 2021. Here’s what you need to know.

The Right to Farm Act has always given “farm operations” established for more than a year special protections from nuisance claims, which otherwise could open agribusinesses to damages for property repairs, diminution in value or loss of income, medical bills or forcing a stop to the activity altogether.

And while Fla. Stat. 823.14 identified certain protected “farm operations,” little other guidance existed for agribusinesses falling outside of what the Act defined. Moreover, what constituted “generally accepted agricultural and management practices” (and would thereby trigger the Act’s protections) in emerging fields created issue. Similarly, whether the underlying issue could be considered a nuisance depended heavily on the judge weighing the value of the activity over the harm caused.

SB 88 ends much of that ambiguity. Agritourism activities are now specifically included, so that additional noise or the like from u-pick ventures or weddings will likely come under the Act’s purview. The definition of what claims fall under the nuisance statute is also broader, meaning plaintiffs trying to get around the Right to Farm Act will likely fall under it, regardless of the type of claim brought–if the trespass or personal injury action arises from an issue with your property or your person because of emissions, noise or vibrations, Fla. Stat. 823.14 applies. SB 88 also narrows how far away you can be to bring those claims. If you aren’t within a half-mile of the alleged nuisance, you’re essentially barred.

The most expansive change under SB 88 is arguably the application of the clear and convincing standard. Typically, tort-based actions are subject to a much less stringent “more likely than not” threshold, meaning that the fact-finder need only find it 50.1% likely that a nuisance existed. Clear and convincing creates a “highly probable” burden of proof for ag neighbors, making it much more difficult to succeed. And part of that burden now requires a showing that the nuisance does not comply with “state or federal environmental laws, regulations, or best management practices.”

The amendments are clearly a win for agribusiness, but some concerns remain over the difficulty to bring an action for more problematic farming activities. Crop burning in Florida presents a particular problem for nearby residents, especially sugarcane burns. A few years ago a class action lawsuit was brought in South Florida after residents suffered asthmatic and other respiratory issues, and there’s some literature that the burning of sugarcane releases certain carcinogens.

Overall, however, environmental violations, specifically related to wellfields and water practices generally, as well as livestock and waste-related abuses, are not protected under the statutes. While the amendments are encouraging that agribusinesses will be well insulated from the financial stresses of litigation, farmers should always be mindful of local noise or wastewater ordinances, as well as maintain up-to-date records on best management practices in their industry. If you’re worried that some of your farms operations may no longer be compliant with local or federal law, or are already involved in a nuisance claim, contact us immediately.

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Kara Groves

After earning her law degree from University of Florida Levin College of Law and working as a tort defense litigator, Kara is settling down and bought some acreage out in Mount Dora. She has returned to her sustainable, regulatory background to help farmers and locally-focused businesses innovate and capitalize on direct-to-consumer movements across the state. In her off time, Kara is an avid gardener and cook. You’ll often find her in downtown Mount Dora adding to her plant collection or taking client meetings in the local brewery and marketplace.

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