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Changing Your Land’s Zoning from Residential to Agricultural

Obtaining the perfect piece of land for your agricultural operation is one of the most important aspects of a solid business foundation. Unfortunately, if your property is not zoned for that particular use, you could find yourself stuck.  Changing your land’s zoning from residential to agricultural may not be an easy process, but depending on your intention, it could be well worth the effort.  The Importance of Zoning Zoning dictates various land use activities by classification for the purposes of planning and safety. Though zoning types may vary, most municipalities will zone land in the following general categories: Residential, Commercial, Industrial, Agricultural, Recreational, and Historical. There are often subcategories that provide more detailed specifics on how the land can and cannot be used in each zone.  Florida Ag Zoning Zoned agricultural lands are areas that have been designated by local jurisdictions with the intention to guard farming land use against incompatible non-farming activities. One of the primary uses of this type of zone is to prevent conflicts between urban and agricultural land use. An ag zoned property does not necessarily have to be used for agricultural operations.  How to Change Zoning from Residential to Agricultural All requests for rezoning must be processed through the county or municipality where the specific property is located. Before considering changing your land’s zoning from residential to agricultural, you may want to consider speaking to a county planner to determine the likelihood of success given the exact location of the property in relation to other similarly zoned parcels. You may also choose to employ the help of an agriculture property attorney to help in this process.  Types of Zoning Changes Rezoning may not be the only option available to you. In some cases, it may be easier to apply for a temporary change to the ag zoning such as a special exception permit or zone variance permit. A variance grants a property owner the legal right to use the property in a way that is contrary to local zoning for that property. Special exception zoning decisions are often made before the zoning process is completed. The third option is getting the property legally and permanently rezoned.  Zoning Variance A zoning variance is granted when a property owner demonstrates an undue hardship. The hardship must exist because of unique circumstances not created by the property owner. Ignorance of the zoning law does not equal hardship.  There are two different types of zoning variances. A use variance allows the property to be used in a way that is prohibited in that zoning district. An area variance provides leniency on dimensional restrictions. This variance is used primarily for height restrictions or setback requirements.  Special Exception or Special Use Permit A special exception or use permit is applicable when using the property outside of zoning restrictions would adversely affect public health, safety, or any other concerns specified by the county. Exceptions are only available if specific limitations are set in place and conditions are met to address the concerns. Property Rezoning  Counties and municipalities have significant discretion on a rezoning approval. Proposals must follow procedures outlined by each local government. Rezoning typically requires evaluation by local officials such as the city planning commission, agriculture commissioner, and others. Community members may put pressure on elected officials to confirm or deny the land owner’s application. Rezoning may be considered under certain circumstances which include: The original property zoning contained an error or oversight, Geographical changes in the surrounding area prevent use of the property under its current zoning, or The rezoning request is consistent with the local government’s long-term land use plan.  It is important to have substantial evidence to support the rezoning. Seeking assistance from an experienced Florida property lawyer is a good way to increase your chance of success in changing your land’s zoning from residential to agricultural. Florida Rezoning Procedures Speaking to local officials responsible for land management is a great place to start the process. Often, local officials will be able to give you a better understanding of the potential success of an application for ag zoning. An attorney can also help you with this initial step prior to starting the official application process. The process of changing your land’s zoning from residential to agricultural differs between counties, though most follow similar general guidelines. Application Filing First you will need to obtain an application for rezoning from the county or municipality’s zoning office or department. You will also have to pay the application fee.  Review of the Application Next, the zoning staff will review your application. They will then make a written recommendation to the county board of commissioners.  Public Hearing The community has a right to weigh in on zoning decisions. Public notice is posted in advance of the hearing. The applicant may be required to make a statement about their request or respond to questions from the public and elected officials.  Rezoning Decisions Finally, the board of county commissioners receives the recommendation and renders a decision on the rezoning application. Appeal is unlikely for most decisions.  Should You Hire a Property Lawyer for Ag Zoning? The rezoning application process alone requires strict attention to detail and the ability to provide a convincing argument that conveys the benefit of rezoning for all parties potentially impacted. Rezoning can also have crucial tax implications that you should consider before making a decision on the specific type of zone you would like your property to be classified as. The worst mistake you could make for your property would be to underestimate the implications of your decision. Groves Law understands the nuances of Florida property law and can advise you on the best strategy for how to change zoning from residential to agricultural, whether that is through a zoning variance, a special exemption, or rezoning. Contact us today to begin the process of changing your land’s zoning from residential to agricultural, so you can get one important step closer to using your property in a meaningful way.

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Florida Overtime Laws for Agricultural Workers

As an agriculture employer, you have a responsibility to ensure that your employees have proper and safe working conditions and are fairly compensated. Under the Fair Labor Standards Act (FLSA) agriculture exemption, your obligations may vary from those of a standard employer. Understanding Florida agriculture overtime laws will help keep you compliant and in good standing with your employees.  Florida Agriculture Overtime Laws The FLSA exists to provide a fair wage standard to all employees. This includes requiring minimum wage payment and overtime of time and a half when employees work over 40 hours in a week. However, some employers are exempt from these rules, and that is where Florida agriculture overtime laws require a closer look.  FLSA Agriculture Exemption The agriculture industry has a lot of moving parts, and not all industries fall under the FLSA agriculture exemption. Several types of employees fall under the agriculture overtime exemption. Piece-Rate Employees Employees compensated on a piece-rate scale are exempt under the FLSA. Suchy employees are non-migrant workers employed in agriculture as hand-harvest laborers for fewer than 13 weeks during the previous year who commute to work daily.  Any agriculture employee who is 16 years of age or younger and employed as a hand-harvest laborer is also exempt. These employees are paid a piece-rate in an operation that is recognized as a piece-rate employer. They must be employed by the same operation as their family and paid the same rate as adult employees.  Livestock Range Production Employees primarily engaged in livestock range production and needing to be available at all hours to care for livestock are also exempt. This applies only if the nature of the work would make computing exact labor hours very difficult. Family Members  Members of the employer’s immediate family are excluded from minimum wage and agriculture overtime laws.  Small Farms Employees whose employer did not use more than 500 man-days of agricultural labor during any calendar quarter of the previous year are exempt from the minimum wage requirements but not overtime. The FLSA agriculture exemption defines a “man-day” as a day during which an employee worked a minimum of one hour. 500 man-days equal approximately seven full-time employees working five days a week.  Florida-Specific Agriculture Overtime Laws A state mandate for labor laws typically supersedes federal law if it provides additional protections. In the case of Florida agriculture overtime laws, the state does not have any specific regulations. This means that Florida agriculture employers should refer to the FLSA rules. The same is true for minimum wage exemptions.  Agriculture Payroll Record Keeping  Though an employee may fall under the FLSA agriculture exemption for overtime, they must still be compensated for each hour worked at their normal rate. It is important for employers to keep accurate and complete records for payroll. Records must include the employee’s: Full name, Social security number, Full address, Date of birth if under 19 years of age, Occupation,  Total hours worked every week, Regular hourly rate, Method of payment, Total weekly earnings,  Deductions or additions from the paycheck,  Total wages for the pay period, and Date of payment.  These records could change on a weekly basis, and the duties of the employee are especially important when it comes to determining exemption. The FLSA has a “look back” period that extends for three years, so it is important to keep records for at least that period of time.  When Employees Are Both Exempt and Non-Exempt One of the biggest pain points of Florida agriculture overtime exemption is reclassification of the employee from an exempt position to non-exempt. Because of the dynamic nature of many agriculture operations, it is easy for an employee to be re-assigned temporarily or permanently to a non-exempt position without even realizing it.  This happens often when the operation handles products that are not their own such as shipping or processing commodities produced by other companies. A hand-harvest laborer who meets the requirements of agriculture overtime exemption is no longer exempt if they are asked to load and unload commodities that they did not harvest. Their exemption becomes nullified, and they are owed time-and-a-half for any time over 40 hours in the week.  H2-A Worker Overtime Exemption The H2-A visa program allows employers to hire temporary foreign laborers to make up for the lack of domestic labor. It is a common assumption that all H2-A workers fall under the FLSA agricultural exemption. This is not necessarily true. Workers must still fit into one of the standards for exemption depending on their duties. Otherwise, the employer must pay minimum wage and overtime.  Liability for Lack of Compliance Agriculture employers who fail to comply with FLSA regulations may face audits or administrative actions by the United States Labor Department and potentially lawsuits filed by employees. Many employers work with farm labor contractors to obtain employees. Employers and contractors may be jointly liable for lack of compliance.  Talk to an Agricultural Business Lawyer About Your Obligations Agriculture overtime exemption laws can become complicated depending on the nature of your agriculture operation. Kara Groves is an experienced agriculture attorney who knows how difficult it can be to balance running a business and navigating legal compliance. Kara is based in Mount Dora, Florida, and accepts clients from across the state. Let her help you set up a system for compliance and fight for your rights as an agriculture employer so that you can focus on what you do best. Contact Groves Law for a consultation.

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Obtaining a Florida Marijuana Growing License

It’s been almost five years since Florida voters passed Amendment 2, the bill legalizing medical marijuana. Since then, over 30,000 cannabis-related jobs have been created, and cannabis sales across Florida now surpass $1.2 billion.  Unfortunately, the process for obtaining a Florida marijuana growing license is anything but straightforward. In fact, the whole process has been virtually ground to a halt by constantly changing legislation, confusing regulations, and endless litigation.  The good news is that there are promising signs that Florida will issue more licenses in the near future.  There’s more good news: You can take definite steps now to prepare your application for a Florida medical marijuana grower’s license.  After you read this article, your best bet is to give us a call. No matter how tricky your situation, we’ll do our best to help you prepare your business for success.  First Things First: Know the Current Situation  If you want to grow medical marijuana in Florida, a grower’s license is a must. First, you need to understand the current legal landscape regarding medical marijuana. Unlike other areas of law, the only constant in Florida’s medical marijuana industry has been change.  A Brief History of Florida’s Medical Marijuana Laws Florida Statute § 381.986 is the state’s medical marijuana law. This statute requires anyone growing marijuana to be licensed as a Medical Marijuana Treatment Center (MMTC). Without an MMTC license, growing marijuana is illegal.  Originally, any business involved in growing or selling marijuana could obtain an MMTC license. Shortly after the passage of Amendment 2, however, Florida’s state legislature passed a bill that required all MMTCs to have “vertical integration.”  This meant that the MMTC couldn’t just grow marijuana and sell it to a distributor. Instead, each MMTC had to be able to grow, process, market, and sell the drug itself. In other words, it had to manage the marijuana “from seed to sale.” Obviously, this bill made it way more difficult for small businesses to get an MMTC license. Various groups sued the state to change the licensure process. Right now, these lawsuits are still ongoing.  A Shortage of Licenses Another difficulty of the process has to do with the group that issues licenses. Florida’s medical marijuana statute states that only the Florida Department of Health (DOH) can issue MMTC licenses.  Unfortunately, the DOH hasn’t been great about issuing licenses. In fact, they’ve issued only 22 MMTC licenses to date. This already complex situation became even more complicated when the COVID-19 pandemic struck.  Now, you might be thinking about simply buying a license. And technically, you could do that. But because of the critical shortage of MMTC licenses, the going rate for an MMTC with a license is in the millions of dollars.  In fact, a Mount Dora nursery with a medical marijuana license sold for $14 million last year! Upcoming Changes While this news may seem discouraging, change is on the horizon. There is at least one ongoing lawsuit that could result in many more MMTC licenses. Members of Florida’s state legislature proposed at least one bill to legalize marijuana for recreational use in 2020. Also, it appears likely that Florida will vote on full marijuana legalization in 2022.   Until then, you can take important steps to prepare and submit your MMTC license.  How to Get a Grower’s License In Florida The first step in obtaining a Florida marijuana growing license is to meet the minimum requirements listed in Florida’s medical marijuana law. Next, you should prepare additional information that might be required. The third and final step is to pay any required fees.  Step #1: Meet the Basic Legal Requirements  Florida law states that all applicants for an MMTC must demonstrate that they have: A business that has been registered in Florida for the past five years; A valid nursery certificate of registration from Florida’s Department of Agriculture;  The technical and technological ability to cultivate and produce marijuana, including low-THC cannabis; The ability to secure the premises, resources, and personnel necessary to operate as an MMTC; The ability to control all any and all cannabis products, including the raw cannabis plant parts and any byproducts; The infrastructure to dispense marijuana to registered qualified Florida medical marijuana patients; The financial resources to keep operations going during the two-year approval cycle;  A medical director to supervise the MMTC’s activities; and A diversity plan that ensures the involvement of minority- and veteran-owned businesses.  Applicants must also obtain level 2 background checks for all owners, managers, officers, and board members.  This requires each individual to give a full set of fingerprints to the Florida Department of Law Enforcement. The best way to get a required set of fingerprints is to visit an approved fingerprint service provider. We’ve added a directory of current service providers here.  Step #2: Prepare Additional Detailed Information About Your Business In 2018, the DOH proposed an administrative rule that expanded the requirements to get an MMTC license. With that rule, the DOH released an Application for Medical Marijuana Treatment Center Registration. The supporting administrative rule was withdrawn last month, so these exact rules don’t apply at this point. However, it’s possible that future MMTC applications will use similar factors to determine whether a business should receive an MMTC. For that reason, it’s worth reviewing the information in the 2018 MMTC application to look for extra information you can prepare now.  Sixteen Key Areas In the 2018 application, applicants had to provide written responses demonstrating their knowledge and capabilities in sixteen areas. The DOH then judged those responses and assigned each one a point value.  The maximum points for each section ranged from 50 to 100. The higher the points the applicant received, the more likely their application would be approved.  The whole process was kind of like a high school test.  The sixteen areas listed in the MMTC application, along with the maximum number of points, were: Cultivation Knowledge and Experience (50 Points); Medical Marijuana Cultivation Plan (50 points); Description of the Planned Cultivation Infrastructure (50 points); Processing, […]

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Hot Dogs & CBD

Are you an antique and collectibles dealer with dreams of operating a hot dog stand alongside CBD products? Probably not. But the regulation of hemp-derived CBD in the Sunshine state makes it possible. That’s because Florida is among a small number of states boldly recognizing hemp-derived CBD as food. And that’s a big deal. To be frank, the federal government tends to disagree.  Still, businesses across Florida are wading into murky waters for the opportunity to become a destination of sorts for CBD-infused commodities, well ahead of the national market. FDACPS Regulations for Selling CBD That said, potential CBD retailers would do well to be mindful of the regulatory framework that the Department of Agriculture Consumer Protection Services (FDACPS) continues to expand. See generally F.A.C. Rule 5K-4.034 and F.S. 581.217. For now, FDACPS treats a storefront hopeful to sell ingestible CBD much like any other similarly-situated food business, but with its own special “Hemp Food Establishment Permit” at a cost of $650.  Otherwise, the process mirrors that of any other food vendor–depending on how you intend to handle and sell the CBD oil or CBD-infused product, you’ll have to sort through sanitation and wastewater needs, meet the minimum construction standards for your business type, and make sure local authorities are on board. More than likely you’ll also be subject to a few more FDACPS inspections than your non-CBD neighbors. In practical terms then, so much as a CBD gummy bear renders your business a food retailer subject to the rules and regulations of a similarly-situated food establishment (in that case, prepackaged foods, like hot dogs!). While your storefront may already meet many of those requirements, it’s important to recognize that falling under FDACPS’ regulatory authority is much more than a fee and some inspections.  CBD products must follow certain labelling requirements and be sourced from FDACPS-approved manufacturers (CBD is very clearly excluded from Florida’s cottage laws). And, again, be sure to keep track of the ever-changing CBD landscape. Since the federal government still isn’t totally on board, watch what you say about the benefits of CBD and understand that any future financing needs may be affected by your new CBD-infused treats.  But every new hoop to jump is an opportunity to expand the business. Developing a small coffee shop, showcasing other local food products, or making room for some hot dogs, the choice is yours–if you’re going to be treated like a food establishment, you might as well act like one.  Contact Groves Law Today Questions about ingestible CBD? Let’s chat. CBD products have many regulations and Groves Law can help you navigate them to expand your business. 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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“U-Pick” or Don’t — Navigating Florida’s Growing Agritourism Trend

Florida’s commercial economy has shifted focus in recent years to unite its two largest industries, tourism and agriculture. Agritourism, otherwise known as ecotourism, promotes low impact travel across Florida and has come to enjoy certain protections and incentives (a limited liability statute and tax exemptions, to name a few). Explaining U- Pick Farms A popular agritourism activity is a “u-pick” farm, where private landowners or commercial retailers invite the public to, as its name suggests, grab whatever they have to offer, whether blueberries, rosemary or sunflowers.  While developing a “u-pick” farm can be a quick revenue boost with long term sustainability, where you are and what you want to do can present a unique set of challenges. For example, while larger family farms already have the know-how to easily develop crop and transition parts of the land to “u-pick” spaces, opening your home up to the public may actually qualify a “nuisance” (despite Florida’s Right to Farm Act), and farmers can be forced to pay their neighbors when parking or waste overflow issues develop. Zoning Matters for Your U-Pick Moreover, while local authorities are limited in how much they can restrict agrotourism activities where property is zoned agricultural (per Florida’s agritourism statute), “substantial offsite impact” can be regulated by county and city ordinances. Plus, in order to enjoy the limited liability statute noted above, the property must be zoned agricultural and maintain very specific signage wherever customers are. It also goes without saying (but we will), that local zoning and health authorities have a say in parking and ADA compliance, handwash sinks and public restrooms. Which is why commercial retailers or restaurants with those build-outs already in place might consider adding a “u-pick” element to their existing space. Particularly since “u-pick” activities are likely considered lower impact than what they’re currently zoned for, rendering a variance unnecessary. Still, allowing customers to pick their own flowers, herbs or produce in a brewery or home goods store isn’t exactly written into the land use plan. Moreover, some cities have peculiar ordinances regulating “gardens” and the like in commercial spaces.  Still, in quickly urbanizing communities with a focus on low-impact development, agriculturally zoned land may abut commercial districts where tourists are already flocking (check-out all these AR-zoned areas near downtown Mount Dora here) and present a lucrative ecotourism opportunity just off the beaten path. Beginners Beware “Beginner” farmers beware, however–if you’re looking to make some cash quick, be sure to skip the berries or fruit trees and opt for some pumpkins, herbs or annual flowers (hand-picked bouquet, anyone?). Moreover, give some thought to the extra clean-up and care you’ll need to devote to your brood with all that pulling and picking. Investing in some friendly signage to let folks know what to pull and when may save you a lot of heartache. Want to Start A U-Pick Farm? Ultimately, no matter where you are in Florida, state and local authorities (and potentially the Feds), will be involved. But as Florida continues to embrace its producers and these direct to consumer movements, it may be worth the effort, wherever your space and however “u-pick.”  Consulting an agribusiness attorney can help you figure out how to comply with state and local reuglations. Questions about your U-Pick farm? Let’s chat. Contact us at contact@groveslaw.ag to schedule a consultation.

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Go “Green” and Save Some Green: Florida’s Agricultural Exemption

In the late 1950s, when suburbia began upending the value of farm land and agribusiness, the State of Florida passed the “Greenbelt” Law, Fla. Stat. 193.461, the answer to a concerted effort to encourage commercial agriculture. A “use-value” exemption, the Greenbelt Law assessed a cattle ranch at the value of its current use, far below its development potential as a condominium or commercial plaza. Property owners have long taken advantage of the Greenbelt law, infamously through “rent-a-cow” type-programs where ill-cared for livestock or the like were placed on the property to significantly reduce tax liability at the initial stages of massive redevelopment. As farm-to-table and other direct-to-consumer movements continue to gain popularity in Florida, however, landowners and lessees should understand how to take advantage of this significant tax break as the legislature intended. Taking Advantage of Florida’s Greenbelt Law It is not enough to buy farm land. In fact, the property doesn’t even have to be zoned for agricultural use. It comes down to whether the local property appraiser thinks the land qualifies for a “bona fide agriculture purpose” under the non-exhaustive factors of Fla. Stat. 193.461(b) (considering, for example, the size of the space being used for agriculture or whether accepted farming practices are in place).  Essentially, is the agricultural use the “most significant activity” and not a “sham or deception.” Hausman v. Rudkin, 268 So. 2d 407, 409 (Fla. 4th DCA 1972). And while the Florida Supreme Court has made clear that the agricultural use does not have to be commercially profitable, there still has to be a legitimate effort to gain income. Straughn v. Tuck, 354 So. 2d 368 (Fla. 1977). In other words, while legitimate agricultural activity needs to take place, parts of the property can be more retailer-focused. Misuse of Florida’s Agricultural Exemption That being said, big developers have maneuvered this exemption well and that’s unlikely to change. Still, some local governments have attempted to crack down on misuse of this law with, you guessed it, county to county variations in the application process. Some counties, for instance, require proof of ownership if a company owns the land, or certain agriculture certificates if the applicant purports to start a nursery or orchard, or raise livestock or horses.  Proving You Qualify For Florida’s Agricultural Tax Exemption Regardless of where you are, the process begins with Florida Department of Revenue form DR-482. March 1st is the application deadline, and your property must already have a “bona fide agriculture purpose” as of January 1st the year you apply (or face another set of paperwork).  Overall, it’s the applicant’s burden to show a legitimate agricultural use. And exactly what qualifies for that continues to change shape (grapes, birds, now weddings, oh my!). But for entrepreneurs entering a consumer market increasingly willing to pay the extra dollar for local product, why not save one while you’re at it? Need help proving you have a legitimate agricultural use? Let’s chat. Contact us to schedule a consultation.

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