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Maintenance, Repair, & Improvements — Who Does What in a Farm Lease?

Agricultural leases have become increasingly common as new generations of farmers look to enter niche markets and aging landowners hope to supplement their income. For farmers entering a lease for the first time, it may be overwhelming to go through every provision to fully understand its effects. However, one of the most critical (and varied) sections that farmers should familiarize themselves with are related to maintenance, repair and improvements to the land and its buildings. Maintenance v. Repair v. Improvement Each term is different from the other and has a specific meaning in the lease.  As you can imagine, repair is a pretty straightforward concept–who fixes what (i.e. a barn door)? It is typically divided by the scope or cost (see more below). Maintenance refers to the routine upkeep of the land and its buildings and is more often separated out by the area in which it occurs. Improvements actually have a specific meaning under the federal Code, not just your lease. Improvements are a specific development to the property that increases “capacity, productivity or efficiency,” fixes a “design flaw,” adapts the property to a “new or different use,” replaces a “major component,” creates a “physical enlargement,” or restructures it after its “useful life.” Developing the land in a way that fits under these definitions can create depreciation value to either the landowner or lessee. Repair Repairs can be a tricky thing both in who is allocated cost and when approval is needed. A badly written lease may not make reimbursement terms clear, which makes the farmer at the mercy of the landowner for whether and when they get paid. Plus, even if the lease is silent, the lessee is still responsible to make repairs necessary to prevent deterioration, so it’s not like you’re able to avoid liability either. Better practice is to ensure specific types of repairs are allocated appropriately to each party, with more minor repairs, like fixing a fence post, being the responsibility of the farmer, and more significant repairs, like large equipment part replacement, going to the landowner. Best practice may be to go with a fixed amount instead: anything over $500 is landowner’s responsibility or requires pre-approval. Either way, make sure reimbursement terms, including the nature of proof required and when it can be expected, are clear, and, in any event, save receipts, as you may be able to deduct certain repairs for income tax purposes. Maintenance Routine upkeep happens so frequently that it’s not often feasible to allocate dollars to who does what. Again, everything becomes more hairy when the lease is ambiguous, so it’s a good idea to at least make sure that landowner is responsible for maintenance of joint amenities, like roads or water systems, while farmer maintains what he or she solely uses. Shared maintenance costs are often utilized as well, where enumerated expenses are built into the rent. Lessee might require certain supplies to carry out maintenance duties, so shared costs as to labor and equipment makes sense here as well. Improvements As noted above, improvements generally deal with permanent additions to the land. Accordingly, if it’s likely the land you’re leasing will need accessory structures, it’s especially important to understand how these provisions work. Generally, if the lease is silent on improvements, they belong to the landowner. Meaning the new pole barn or incubator put in place by the farmer doesn’t belong to him or her unless the lease says otherwise. That’s because, historically, these expansive improvements (think ventilation or heating systems, roofing, sewage, or water supply) inured to the land. So, it’s a good idea to think through what additional structures you may need on the property and talk to the landowner up front about it. If your lease is long enough, it may be worth requesting that certain capital improvements be allocated to you, if you’re able to recoup those dollars or depreciate the improvements as an asset. The landowner may also be open to financing the development on the frontend, up to a certain percentage or dollar value, through a tenant allowance, so it might be worth the ask. Either way, the lessee should include in the lease that he or she can remove the structure or sell back to the landlord or otherwise. Hopefully, the different purposes and use of these provisions are more clear. If you’re looking for template farm leases in general, a few are available here. Questions about Maintenance and Repair Duties? Let’s chat. Contact us at contact@groveslaw.ag to schedule a consultation. Because we’re attorneys: This blog post is provided on an “as is” and “as available” basis as of the date of publication. We disclaim any duty to update or correct any information contained in this blog post, including errors, even if we are notified about them. To the fullest extent permitted by law, we disclaim all representations or warranties of any kind, express or implied with respect to the information contained in this blog post, including, but not limited to, warranties of merchantability, fitness for a particular purpose, title, non-infringement, accuracy, completeness, and timeliness. We will not be liable for damages of any kind arising from or in connection with your use of or reliance on this blog post, including, but not limited to, direct, indirect, incidental, consequential, and punitive damages. You agree to use this blog post at your own risk. Regarding your particular circumstances, we recommend that you consult your own legal counsel (hopefully Groves Law). All Rights Reserved. All Puns Intended.

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Navigating Dangerous Waters: Surface and Groundwater Liability for Agribusinesses

Private property rights are a fundamental part of America’s legal landscape. However, the use and maintenance of that property can create conflict between a landowner and his neighbors. This is a particularly big issue for agribusinesses, which are more likely to have chemical, nutrient or waste runoff that may negatively impact those around them. This post covers general water rights of the respective parties and how a landowner might be liable for failing to monitor ground or surface water issues. What are Water Rights? The first step is figuring out what sorts of rights you and your neighbors have and what those terms mean. This article generally covers ground and surface water issues. Ground water in this context refers to naturally occurring water underground in Florida, like that pumped for well water, which has been contaminated or damaged in some way. Surface water is related more to rainfall or overflow generally from one property to another. Surface Water Rights Liability for these water issues usually arise in very different scenarios. Generally speaking, surface water drainage and runoff problems end up in a courtroom when neighboring properties are at different elevations  and some structure is created that causes water to overflow. See generally, Westland Skating Center, Inc. v. Gus Machado Buick, Inc., 542 So.2d 959, 963 (Fla. 1989). For farmers and agribusinesses, surface water issues are also likely to occur because of  improper management of waste or chemicals that get mixed into stormwater runoff. Thankfully for the agriculture industry, Florida follows what’s called the ‘reasonable use’ theory, meaning you’re not strictly liable for a runoff issue. States follow different theories of liability, but Florida’s is considered the middle-ground. It’s a case-by-case standard, meaning that there’s no bright-line rule as to what would incur liability. It also may not matter that your neighbor knew of your activities or was aware that the property sat below an agribusiness. Groundwater Rights Groundwater liability is often seen in agriculture with respect to chemical, heavy metal or other foreign material pollution being deposited into a neighbor’s groundwater. Another common scenario in agriculture is where a neighbor is being deprived of groundwater because the agribusiness either mistakenly believes it has right to the water or is negligently operating in a way that removes it, like with irrigation. Riparian rights, which has to do with ownership and use of streams or lakes, often fall into this latter category as well, where an agribusiness misuses a waterway abutting multiple properties. Groundwater liability is a bit more stringent in Florida. Our unique geography, which allows us to pull drinking water from underwater aquifers, means that an agribusiness can be held liable to the state if it’s not using EPA or FDACS approved chemicals or is using those chemicals in an unauthorized way. Where other states may not be able to use groundwater as drinking water, Florida can, and that means a higher scrutiny for certain discharge activities. While agribusinesses are generally exempt from needing a discharge permit, if you’re concerned that your operation may emit unusually high amounts of contaminants into the ground, it’s best practice to check with the  Florida Department of Agriculture and Consumer Services. Damages for Liability An agribusiness can be liable not only to its neighboring landowner, but also to whoever has a right to use the property when the damage occurs.  Liability may include having to pay out money for loss of equipment, livestock or crops, for a diminution in value of the real property or its rental value, or being prohibited from doing certain activities. There may also be additional ‘punitive’ damages, if a jury finds the conduct so reckless that punishment at some unknown dollar amount is necessary. There may also be county or local ordinances that provide even stricter standards for drainage and surface water issues, like what type of structures can be erected or how the water may be used, particularly in areas where rainfall is more frequent or water policy a more central concern (like water management districts). To avoid or limit liability, it’s important to understand whether your farming or agribusiness activities may require drainage or other environmental permitting. See generally, stormwater drainage requirements for residential properties in Volusia County here. Questions about Surface or Groundwater Rights? Let’s chat. Contact us at contact@groveslaw.ag to schedule a consultation. Because we’re attorneys: This blog post is provided on an “as is” and “as available” basis as of the date of publication. We disclaim any duty to update or correct any information contained in this blog post, including errors, even if we are notified about them. To the fullest extent permitted by law, we disclaim all representations or warranties of any kind, express or implied with respect to the information contained in this blog post, including, but not limited to, warranties of merchantability, fitness for a particular purpose, title, non-infringement, accuracy, completeness, and timeliness. We will not be liable for damages of any kind arising from or in connection with your use of or reliance on this blog post, including, but not limited to, direct, indirect, incidental, consequential, and punitive damages. You agree to use this blog post at your own risk. Regarding your particular circumstances, we recommend that you consult your own legal counsel (hopefully Groves Law). All Rights Reserved. All Puns Intended.

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The Basics of Specialty Crop Insurance

As new crops develop and gain public interest, certain farmers are left without viable crop insurance. Crop insurance is heavily regulated and controlled by the Federal Crop Insurance Corporation and its partnership with certain private insurance companies. Insurance for new crops is not broadly available until it is approved by the FCIC. These new crops not historically supported by the federal insurance programs are called “specialty” crops–with almonds, citrus and grapes the largest among them. This post covers how the private sector, including farmers and researchers, can work together to develop what’s called specialty crop insurance.  Overview The Risk Management Agency (RMA) is the arm of the FCIC which oversees the development of specialty crop insurance through the private sector. The specific procedures for submission are identified at 7 U.S.C. §1508(h), a.k.a. Section 508(h) of the Federal Crop Insurance Act. To get started, private individuals or entities can either attempt to contract with the RMA directly or submit to the FCIC “unsolicited” proposals quarterly, by the fifth business day of January, April, July or October. Scope of Section 508(h) Proposals This can vary. The private party can submit rate premiums or risk-provisions, or full-blown crop insurance policies. All of these are called “Section 508(h) proposals” and can take about a year to review. In general, the submission must identify a “recognized need” within a population that has some sort of ownership interest in the specialty crop (i.e. the insured actually has to some right to the crop or livestock). You will have to demonstrate a tangible “demand” for the commodity as well, which could mean documentation from local producers or insurance companies showcasing how extensive the need is to justify the cost for implementation. Similarly, if the risks identified in the proposal are generally covered under similar policies, the FCIC board cannot approve of the submission. Getting credible rate and pricing data is also a must. You’ll have to consider yield or development-cost risk (i.e. does it die with a little snow, or does the commodity take extra-special care and expense to grow), depending on the type of policy you’re proposing. Be sure to create a well-rounded picture with information from multiple producers, commodity groups or independent research organizations, which can include anything from prior publications, contracts reflecting various pricing values, or weather analytics. The full “Checklist” of items needed for a specialty crop 508(h) proposal can be found here. Scope of “Concept Proposals” Alternatively, RMA also offers preliminary “concept proposal” review, wherein the board may advance up to 50% of the anticipated development cost for one of the above-referenced submissions. While the same concepts identified above generally apply, there are some specific steps to follow for this sort of proposal, as outlined here. Choosing this route allows you] to continue to receive reimbursement once the products reach the market for another three years, and potentially thereafter depending on whether you want to continue ownership and maintenance of the specialty crop product. What Happens if Your Specialty Crop is Approved Whatever route you choose, if the FCIC board approves, a pilot program is generally put in place for a limited area for around four years. If you do not relinquish ownership rights in the product, there’s a slew of data reporting to follow, which you can see here. Overall, while developing specialty crop insurance products is an extensive process, it can create greater public access to a variety of commodities and continue to enhance diversity in the market. Questions about Developing Specialty Crop Insurance or Navigating Crop Insurance in General? Let’s chat. Contact us at contact@groveslaw.ag to schedule a consultation. Because we’re attorneys: This blog post is provided on an “as is” and “as available” basis as of the date of publication. We disclaim any duty to update or correct any information contained in this blog post, including errors, even if we are notified about them. To the fullest extent permitted by law, we disclaim all representations or warranties of any kind, express or implied with respect to the information contained in this blog post, including, but not limited to, warranties of merchantability, fitness for a particular purpose, title, non-infringement, accuracy, completeness, and timeliness. We will not be liable for damages of any kind arising from or in connection with your use of or reliance on this blog post, including, but not limited to, direct, indirect, incidental, consequential, and punitive damages. You agree to use this blog post at your own risk. Regarding your particular circumstances, we recommend that you consult your own legal counsel (hopefully Groves Law). All Rights Reserved. All Puns Intended.

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Pesticide and Fertilizer Liability for Farmers in Florida

The use of chemicals and natural products to protect and maintain crops and livestock is as old as the mass-ag industry. Historically, these practices can pose a threat to native ecosystems and surface water, particularly in Florida, where almost all drinking water comes from in-ground wells. For those reasons, farmers must be aware of Florida law governing the use, disposal, and maintenance of pesticides and fertilizers. Generally speaking, the application and storage of these chemicals may have product-specific statutes (i.e. Florida’s Pesticide Law) and can fall under separate waste and wastewater disposal regulations at the federal and state level. Failure to abide by them may lead to civil and criminal exposure. This article focuses on Florida-specific statutes and law. Pesticide Application Chapter 487, Florida Statutes,  a.k.a. the Florida Pesticide Law, discusses how pesticides must be applied. There are Best Management Practices promulgated by the Florida Department of Agriculture for the storage and preparation of these chemicals as well. Part of the Florida Pesticide Law also provides rights of action for agricultural employees exposed to certain pesticides. Fertilizer Application Fertilizer has its own Chapter within the Florida Statutes (Chapter 576) but its specific to fertilizer application companies and labelling of local fertilizer products. Florida more broadly has a Springs and Aquifer Protection Act that requires certain counties, and in turn its farmers and agribusinesses, to limit and monitor fertilizer use and runoff. Waste and Wastewater Regulation Pesticide and fertilizer can also cause groundwater pollution and may be subject to federal and state discharge permitting. Generally speaking, however agricultural water management systems are not required to obtain discharge permits. Essentially, as long as the water in an agricultural management system remains within that particular system (e.g., an irrigation operation), no permit is required. Once the water leaves that particular system, that discharge is then regulated, and the farming activity may be liable. Following the FDACS Best Management Practices and being able to articulate what you’ve implemented will help you avoid liability. This includes recalibrating pesticide equipment, isolating and redirecting stormwater to retention ponds, and having fully enclosed storage structures for pesticides. Overall, the State of Florida encourages, and it’s best practice to prepare, an Integrated Pest Management Program and Conservation Plan related to your use of fertilizers and pesticides in and around your water sources and irrigation systems. Essentially, if you ever hear from an environmental or agricultural department at the local, state or federal level, it’s best to have handy a guide or manual specific to your property to show how you maintain waste and minimize chemical discharge into Florida’s groundwater system. Questions about Pesticide and Fertilizer Liability? Let’s chat. Contact us at contact@groveslaw.ag to schedule a consultation. Because we’re attorneys: This blog post is provided on an “as is” and “as available” basis as of the date of publication. We disclaim any duty to update or correct any information contained in this blog post, including errors, even if we are notified about them. To the fullest extent permitted by law, we disclaim all representations or warranties of any kind, express or implied with respect to the information contained in this blog post, including, but not limited to, warranties of merchantability, fitness for a particular purpose, title, non-infringement, accuracy, completeness, and timeliness. We will not be liable for damages of any kind arising from or in connection with your use of or reliance on this blog post, including, but not limited to, direct, indirect, incidental, consequential, and punitive damages. You agree to use this blog post at your own risk. Regarding your particular circumstances, we recommend that you consult your own legal counsel (hopefully Groves Law). All Rights Reserved. All Puns Intended.

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Longleaf Pine Private Landowner Incentive Program

From South Florida’s Everglades to Gainesville’s Paine’s Prairie, Florida boasts a variety of natural ecosystems. Some are the subject of grant or incentive programs which allow agribusinesses and private farmers to benefit from maintaining those ecosystems. In Florida, one example is the “Longleaf Pine Private Landowner Incentive Program.” As its name indicates, this rebate-style program is for private landowners with Pinus palustris habitats, also known as Longleaf Pines. According to the Florida Department of Agriculture, “[l]ongleaf pine forests once covered a vast range from Texas to Virginia, but have been reduced to less than four percent of historical acreage due to conversion.” They are hearty, resistant groundcover with a unique imprint on the landscape. In an effort to preserve this ecosystem, the USDA Forest Service, U.S. Department of Defense, and state agencies like Florida Forest Service collectively provide funding to private landowners who revitalize and maintain Longleaf Pine Forests. Incentive Program Qualifications The program has several qualifications. First, you have to be a “private” “landowner.” A landowner can be an individual or an entity. An entity can still be considered private even if it operates commercially so long as no more than 50% of the entity’s gross income derives from “wood-using” industries. You’ve then got to be a private landowner of a longleaf pine “stand,” which means that 50% of the relevant acre must be made up of Pinus palustris. The program is also limited by acreage and county. You can only participate if you are near to state-identified conservation areas and have at least five acres of land (and not more than 5,000). You can figure out whether your county is included here. Finally, landowners already participating in the Conservation Reserve Program (CRP) or Environmental Quality Incentives Program (EQIP) may be prohibited from the longleaf program depending on the type of aid they receive. Incentive Program Application & Benefits If you’re eligible, application can be made once a year to the Florida’s Department of Agriculture, during the designated “sign-up” period, typically in the summer. If accepted, you’ll receive funding and assistance of up to four approved longleaf pine restoration activities. Specifically covered include “longleaf planting, site preparation, longleaf seedling purchase, prescribed burning, native understory establishment, timber stand improvement, herbicide application, fuels reduction, mowing, [and] invasive species control.” The landowner typically retains an arborist, forester or similar natural resource expert to prepare the application and in implementing the practices. The approved practices have a specific payment rate, per the figure below. Participants must submit invoices and receipts per the Department’s standard form. Activities must also adhere to the Silviculture Best Management Practices, found here. Overall, while improving longleaf forests requires care and attention, it’s a worthwhile activity that can preserve a vital Florida ecosystem while putting a little money back in your pocket. Questions about the Longleaf Pine Program? Let’s chat. Contact us at contact@groveslaw.ag to schedule a consultation. Because we’re attorneys: This blog post is provided on an “as is” and “as available” basis as of the date of publication. We disclaim any duty to update or correct any information contained in this blog post, including errors, even if we are notified about them. To the fullest extent permitted by law, we disclaim all representations or warranties of any kind, express or implied with respect to the information contained in this blog post, including, but not limited to, warranties of merchantability, fitness for a particular purpose, title, non-infringement, accuracy, completeness, and timeliness. We will not be liable for damages of any kind arising from or in connection with your use of or reliance on this blog post, including, but not limited to, direct, indirect, incidental, consequential, and punitive damages. You agree to use this blog post at your own risk. Regarding your particular circumstances, we recommend that you consult your own legal counsel (hopefully Groves Law). All Rights Reserved. All Puns Intended.

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USDA Certified Organic: The Basics

Agribusinesses typically face tight margins that make it difficult to increase revenue long-term. Many turn to local and national programs for certain credits, grants or other financial incentives to offset these challenges. While the USDA’s Organic Certification Program isn’t exactly a quick fix, it does offer financial assistance that can help modernize your operations, create a wider market with higher price points, and qualify for private grant and partnership opportunities. What does it mean to be USDA Certified Organic? Generally speaking, organic certification incorporates better soil and water management practices, decreases reliance on synthetic products, and limits waste. The certification is available to a variety of agribusinesses, including aquaculturists, horticulturists, packers and handlers and livestock farmers. Where do I start? The first step to “certified organic” is contacting a certifying agent accredited by the federal USDA. Florida does not have its own separate organic certification process through the State’s Department of Agriculture. Federally accredited quality certification programs and services are operated by private or quasi-public organizations across the country, like Florida Organic Growers or Americert International in Florida. They have the USDA’s blessing to audit, inspect and approve applications for organic certification locally. You’ll want to think through which local certifier office to work with for the accreditation (consider the certifier’s fees, ability to certify to other standards, and distance from you since they conduct inspections regularly). How do I make it happen? Each industry has its own record-keeping requirements, audit and inspection timeframes. Plus, transitioning to a fully organic operation comes with its own set of limitations. For example, if you’re a tomato grower, no prohibited pesticide, fungicide, etc. can be used on the soil for the prior three years. Sodium nitrate compliance, feed inventory, and health records for livestock are all examples of record-keeping requirements depending on what you do. Like I said, the transition to organic is not so quick. However, if your gross organic annual sales are under $5,000, official certification through the USDA (and the corresponding cost) is not required.  You also aren’t responsible for putting together the more involved “Organic System” plan (think business plan, but for your organic practices) otherwise necessary to be considered organic. Note that if you do qualify for this exemption, you’re limited on what organic labels you can use. Is it worth the cost? The local certifiers can provide a breakdown of the anticipated costs for the organic switch specific to the size and complexity of your operations. There are also several financial aid programs available. For example, the USDA’s EQIP program currently offers up to $140,000 over the term of the 2018 Farm Bill for certain costs. See Florida’s local guidelines here. You can also get up to a $500 reimbursement for application fees and inspection costs through the USDA’s Cost-Share Program. And like we mentioned above, once you’re up and running, there are additional grant and partnership opportunities to continue to develop organic practices. Check out the Organic Farming Research Foundation here. Overall, the organic certification is an involved, transformative process. It’s costly, and it can take time to see its value. But it may make sense to look at the long-term effects depending on the market you’re in and what efficiencies it can bring to your agribusiness. Questions about USDA Organic Certification? Let’s chat. Contact us at contact@groveslaw.ag to schedule a consultation. Because we’re attorneys: This blog post is provided on an “as is” and “as available” basis as of the date of publication. We disclaim any duty to update or correct any information contained in this blog post, including errors, even if we are notified about them. To the fullest extent permitted by law, we disclaim all representations or warranties of any kind, express or implied with respect to the information contained in this blog post, including, but not limited to, warranties of merchantability, fitness for a particular purpose, title, non-infringement, accuracy, completeness, and timeliness. We will not be liable for damages of any kind arising from or in connection with your use of or reliance on this blog post, including, but not limited to, direct, indirect, incidental, consequential, and punitive damages. You agree to use this blog post at your own risk. Regarding your particular circumstances, we recommend that you consult your own legal counsel (hopefully Groves Law). All Rights Reserved. All Puns Intended.

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Chicks, Piglets, Foals–Oh My! Farm Animal Law around Florida

Cities and counties across the country have some surprising laws related to animal husbandry. One city may not allow piglets without a permit, another prohibits cows if you don’t have enough acreage. And while there may be statewide farm animal laws establishing certain guidelines, usually counties, cities and small towns have additional, and often strange, requirements. These unusual farm animal laws usually reflect the history of the area. Florida is no different. Below are some unique city and county farm animal laws to make you think twice before adding to your flock. Jacksonville Backyard Hens,  City Code Sec. 656.422 You might be surprised at how concerned the City is with the female gallus domesticus. Titled ‘Backyard Hens,’ Code Sec. 656.422 reflects that a single family dwelling may house up to five (5) hens per acre in certain residential zones (“Agriculture and Rural Residential-Acre” zones excluded) after applying for a permit (with fees) through the Planning and Development Department. You also have to take a chicken-keeping seminar with the Duval County Agricultural Extension Office. And there’s a whole list of requirements for how the backyard hens must be kept, including that they at all times be kept in a coop or enclosure, not to exceed 10 x 10 feet, located at the back of the property only, and screened from a neighbors’ view. Miniature Vietnamese Potbellied Pigs as Household Pets, City Code 656.422 We had to add this one, too. There are quite a few “pig pet” laws across the state, but this one is by far the most specific. It establishes a strict prohibition on any pig or swine as a household pet unless it is a registered purebred sus scrofa vittatus, or Vietnamese potbellied pig (pictured). One potbelly per acre and primarily kept inside. Interestingly, there’s an entire licensing application that must be renewed annually. It must include written certification from a veterinarian that the pig in the thirty days prior is negative for psuedorabies and brucellosis and an affidavit that no more than two potbellies are at the same home. The state also gets the opportunity to observe your pet piglet at that time. Lee County Special Exception for Certain Exotic Pets,  City Code Sec. 34.1297 Officially titled “Activities requiring special approval,” Lee County requires owners of certain exotic farm animals considered to have “possible adverse effects on the natural environment” or “potential hazard to surrounding property” to obtain a special exception in certain zoning districts for their keeping, raising or breeding. The list includes: “(a) American alligators or venomous reptiles; (b) Marine life which requires the storage of brackish or saline water; (c) Domestic tropical birds for commercial purposes; and (d) Class I and II animals” (as maintained by the Florida Fish and Wildlife Commission — we really mean lions, tigers, bears, oh my, here). For (a) and (d), the special exception must include the “number and type” allowed. Ocala Llama Law,  City Code Sec. 122.1221 Okay, so it isn’t just about llamas. This City of Ocala ordinance allows for farm animals in single family residential (not agricultural) for “accessory use” upon application to the planning and zoning commission and after a public hearing.  Though husbandry cannot be the primary use of the property, you’re still allowed to keep certain farm animals. You have to have at least five acres and there’s a limit per acre, as follows: “Equine (e.g., horse, mule, donkey, etc.) and bovine (e.g., cattle, bison, etc.) shall not exceed one for every two and one-half acres and caprine (e.g., goats), ovine (e.g., sheep) and lama (e.g., llama, alpaca, etc.) shall not exceed three for every one acre.” Poultry (chicks, goose, ducks) cannot exceed 25 total and no roosters. Piggies aren’t allowed. There’s also certain qualifications for manure storage. If you’re violating a part of this Code, you’re likely also violating general nuisance law. See our blog post here for more information on nuisance law. Palatka Running at Large,  City Code Sec. 14-2, 3. Once a trading post town, Palatka’s prohibition against farm animals “running at large” may be rooted in its history. Any “animal or fowl” tied out in the street (other than a dog) is considered running at large, and is technically a violation of the law. Moreover, if livestock tied to a “fence, shade tree, ornamental tree or shrubbery” does any damage to it because of the negligence or willfulness of the person who tied the livestock to it, you’ve violated the law, and may have to foot the bill for its repair. Questions about your Farm Animal Law? Let’s chat. Contact us at contact@groveslaw.ag to schedule a consultation. Because we’re attorneys: This blog post is provided on an “as is” and “as available” basis as of the date of publication. We disclaim any duty to update or correct any information contained in this blog post, including errors, even if we are notified about them. To the fullest extent permitted by law, we disclaim all representations or warranties of any kind, express or implied with respect to the information contained in this blog post, including, but not limited to, warranties of merchantability, fitness for a particular purpose, title, non-infringement, accuracy, completeness, and timeliness. We will not be liable for damages of any kind arising from or in connection with your use of or reliance on this blog post, including, but not limited to, direct, indirect, incidental, consequential, and punitive damages. You agree to use this blog post at your own risk. Regarding your particular circumstances, we recommend that you consult your own legal counsel (hopefully Groves Law).

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USDA’s 2021 Readiness Grants and Custom-Exempt Meat-Processing in Florida

COVID shed light on serious supply chain issues around the globe. The ease of disease-spread in large warehouse facilities meant massive production delays. For agribusinesses especially, this was most felt in the meat-processing industry. Meat processing plants across the nation faced with waves of infection among workers and government actions aimed at stemming the tides, were forced to close or severely reduce operations. As a result, processing became backlogged, farmers’ livestock became too large to sell commercially, and customers have seen rising meat prices as a result. This article focuses on one possible solution to this large-scale agriculture issue likely to continue for the foreseeable future: the development of more custom-exempt facilities–small-scale slaughterhouses that can only process meat on behalf of the livestock owner(s) or family members. Federal and Florida Regulation of Custom-Exempt Operations That’s because, generally speaking, it’s illegal for farmers who want to sell their beef, pork or poultry to slaughter their livestock for sale without a “grant of inspection” from a federal or state agency. There are four types in total — full federal, state level, custom-exempt and retail exempt. You can be one or a set of these depending on your operation. Custom-exempt operations are particularly appealing because the application process is much less burdensome. The clientele is limited, however. Custom-exempt operators service livestock farmers with one or multiple customers looking to buy and split the animal, or seasonal hunters looking for game to be slaughtered. They can also act as middlemen who purchases the livestock from the farmer as a representative of the final owner.  Further, retail sales are not allowed (products must be labelled “Not for Sale”), and they can’t sell across state lines. While custom-exempt operators are spared the “full” federal inspection, they must still apply to the USDA, which has the right to inspect the facility during harvest (typically once or twice a year) to make sure the livestock is processed in a “sanitary manner.”  These inspections mean maintaining up-to-date records related to sewage and waste (specifically identifying high risk material like the brain if you’re dealing with beef), chemical and water safety generally. Animals slaughtered must also be ambulatory, so that should be recorded as well. Also keep in mind that poultry, beef and pork may have their own set of processing rules. In Florida, custom-exempt operators are spared a state-wide slaughterhouse application process. The state, as well as county and local governments, still have general sanitation, zoning and animal cruelty requirements for these types of facilities though (see generally, Florida’s Humane Slaughter Act,  62-302 F.A.C.,  Hillsborough County Code Sec. Sec. 6.11.91, City of Jacksonville Code of Ordinances Sec. 462.901, 460.106). Starting and Growing a Custom-Exempt Operation Overall, the industry issues COVID highlighted may have some livestock farmers considering a custom-exempt slaughterhouse on-site, since it’s generally considered the least cost prohibitive. However, the startup expense is still typically in the seven-figure range between the space needed, the construction, and some of the state and local provisions listed above with their own inspection and application costs. On the heels of these issues, however, the USDA recently announced new Meat and Poultry Inspection Readiness Grants for existing exempt slaughterhouses (see the application packet here) to use up to $200k toward obtaining a higher inspection level. As a top meat-producing state, and with more farm-to-table-minded consumers exploring alternatives (if you’re one, start at this list of custom-exempt facilities!), Florida agribusinesses may be able to capitalize on this local focus and contribute to a much needed revamp of the industry. Considering a Custom-Exempt Operation or Have General Questions? Let’s chat. Contact us at contact@groveslaw.ag to schedule a consultation. Because we’re attorneys: This blog post is provided on an “as is” and “as available” basis as of the date of publication. We disclaim any duty to update or correct any information contained in this blog post, including errors, even if we are notified about them. To the fullest extent permitted by law, we disclaim all representations or warranties of any kind, express or implied with respect to the information contained in this blog post, including, but not limited to, warranties of merchantability, fitness for a particular purpose, title, non-infringement, accuracy, completeness, and timeliness. We will not be liable for damages of any kind arising from or in connection with your use of or reliance on this blog post, including, but not limited to, direct, indirect, incidental, consequential, and punitive damages. You agree to use this blog post at your own risk. Regarding your particular circumstances, we recommend that you consult your own legal counsel (hopefully Groves Law). All Rights Reserved. All Puns Intended.

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Florida Farm-to-Flask: SB 46 “Craft” Distilleries Bill – Get to Know Your Local Farmer, Fast

Hi Brewers’ Law distillers, vintners, brewers, distributors, industry followers! Kara Ann Groves here of Groves Law, the ag-focused branch of BrewerLong, subbing in to bring you the crossover you didn’t know you needed. I’ve been around since the start of Brewers’ Law, and we now collectively service and connect producers and wholesalers across these industries. And SB 46, or the Craft Distilleries Act, presents just the opportunity for me to drop by and talk through the big agricultural changes key to maintaining this new “craft” distillery license. Brewers’ Law already broke down how significant this is for the craft liquor and bar industry generally here. And while there are several other hurdles to jump before qualifying as a “craft” distillery, I’m here to talk about arguably one of the biggest. Because if you want to become licensed under the Act (qualifying for in-house consumption and producing three times more than you could previously!), it’s time to start buying local. Like Florida’s Farm Winery Act and many “farm” or “craft” bills around the country, SB 46 aims to facilitate partnerships between established craft beverage and ag producers. Specifically, by July 1, 2026, 60% of the total product of a craft distillery licensed under the Act must be distilled in Florida and contain at least one Florida “agricultural product.” So what exactly is an “agricultural product” and how can these industries make this work? After all, Florida’s infertile soil and harsh weather don’t always mix well with a variety of crops. Unfortunately, “agricultural product” is not defined under the Act, but there are a few definitions elsewhere in the Florida Statutes and other states that may shed some light on what will qualify. Licensing provisions of Chapter 604 Florida Statutes provides its definition as any “natural products” of a variety of agribusinesses. However, citrus (except limes), grain and sugarcane are not included. Its definition under “agricultural advertisements” (Fla. Stat. 571.03) is more expansive to include “any horticultural, aquacultural, viticultural, dairy, poultry, apicultural, or other farm or garden product.” In New York, rye, peaches, grapes, corn, oats, barley, hops, wheat, apples and cherries have come under that definition across the “farm” beverage industry. And while embracing a more expansive definition of what products qualify will likely spark diverse partnerships, Florida and its would-be craft distillers would do well to heed lessons learned around the country related to supply and demand. Namely, because these bills did exactly as intended, demand for certain new crops, like malt barley in New York, skyrocketed. But local farmers dared not produce it without insurance coverage, which hadn’t previously existed in that area because of, at least in part, the crop’s volatility. In other states, equipment and harvesting issues delayed distribution. Simply put, across the country, in some way, shape or form, supply chains had difficulty keeping up when everything took off. Leaving some established Florida distillers, and perhaps rightfully so, skeptical of whether they’ll be able to meet those ag requirements. But this is just the state to make it work. Florida’s tourism-centric economy invites something different. South Florida’s extensive sugarcane industry could mean vodka or rum, and perhaps its citrus groves for gin. We here at Groves law, as big fans of bourbon and rye-based drinks (Manhattan, anyone?), are most looking forward to North and Central Florida distillers doing something special with the established corn and grain producers in those areas. For those new to the industry, whether distiller or farmer, FDACP’s Farm to You portal may be just the place to start connecting. SB 46 goes into effect this July, so we mean it when we say get to know your local agribusinesses sooner than later. Here’s hoping the more the merrier. Questions about Craft Distilleries? Let’s chat. Contact us at contact@groveslaw.ag to schedule a consultation. Because we’re attorneys: This blog post is provided on an “as is” and “as available” basis as of the date of publication. We disclaim any duty to update or correct any information contained in this blog post, including errors, even if we are notified about them. To the fullest extent permitted by law, we disclaim all representations or warranties of any kind, express or implied with respect to the information contained in this blog post, including, but not limited to, warranties of merchantability, fitness for a particular purpose, title, non-infringement, accuracy, completeness, and timeliness. We will not be liable for damages of any kind arising from or in connection with your use of or reliance on this blog post, including, but not limited to, direct, indirect, incidental, consequential, and punitive damages. You agree to use this blog post at your own risk. Regarding your particular circumstances, we recommend that you consult your own legal counsel (hopefully Groves Law). All Rights Reserved. All Puns Intended.

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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. Questions about ingestible CBD? Let’s chat. Contact us at contact@groveslaw.ag to schedule a consultation. Because we’re attorneys: This blog post is provided on an “as is” and “as available” basis as of the date of publication. We disclaim any duty to update or correct any information contained in this blog post, including errors, even if we are notified about them. To the fullest extent permitted by law, we disclaim all representations or warranties of any kind, express or implied with respect to the information contained in this blog post, including, but not limited to, warranties of merchantability, fitness for a particular purpose, title, non-infringement, accuracy, completeness, and timeliness. We will not be liable for damages of any kind arising from or in connection with your use of or reliance on this blog post, including, but not limited to, direct, indirect, incidental, consequential, and punitive damages. You agree to use this blog post at your own risk. Regarding your particular circumstances, we recommend that you consult your own legal counsel (hopefully Groves Law).

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