WHAT THE FLORIDA “AGRITOURISM” STATUTES DO — AND DO NOT, DO: PART III

This is a continuation of a three part series. Check out part one here and part two here.

The Agritourism Statutes Do Not Make You Completely Exempt from the Florida Building Code

The exemption from the Florida Building Code under Fla. Stat. 604.50 and 53.73(10)(c) only applies to “nonresidential farm buildings.” So even if you fall under the Agritourism Statutes, structures that are not considered “farm” or “nonresidential” must have appropriate building permits. In other words, a barn previously qualifying as a nonresidential farm building that is now being used as a bed and breakfast or overnight stay may still be subject to building permits. See also AGO 2009-26 (“[t]he term “residential” in section 604.50, Florida Statutes, does not require that persons reside in the dwelling on a full-time basis … a nonresidential farm building would be subject to a zoning compliance permit to the extent such a permitting requirement does not prohibit, restrict, regulate, or otherwise limit an activity of the farm.”)

Similarly, the statute very clearly “does not prohibit the enactment of new local governmental ordinances related to the construction of new or additional structures intended primarily to accommodate members of the general public.” See UF’s Agritourism Packet. Any additional buildings erected that are more often used for visitors than for your ag operation will be subject to building permits.

Moreover, several cities and counties also have packets you need to fill out before you start building without permits. See Polk County Exemption Packet. So it’s best practice to get it sorted out with planning and zoning before you’re hit with a Code Enforcement action charging you money per day until you pull permits. And buyers of ag-zoned property with additional “farm buildings” should do their due diligence and confirm that the appropriate permits were pulled, because once you own the property, any pre-existing failures to comply with the permits fall to you should an issue arise.

The Agritourism Statutes Can Restrict How Local Governments Regulate You

I know much of this article has been spent describing all the ways in which the Agritourism Statutes are limited. However, at the end of the day, the state government has declared agritourism a protected industry of the state, and ag operators do hold power to fight local governments that go too far.

Remember, local government ordinances and permitting that “prohibit, restrict, regulate, or otherwise limit an activity of the farm” are not enforceable against your agritourism activity.  AGO 2009-26. This can include restrictions on “hours of operation, number of participants, [and] parking regulations.” UF’s Agritourism Packet. With that in mind, should your farm become the subject of a code enforcement action related to these issues, be sure to think through whether the ordinance will impact your ag operations, i.e. will the development of a parking lot take away a significant chunk of growing area for your nursery? Will the requirement to create landscaping buffers negatively affect your livestock? See generally, Wilson, et al. v. Palm Beach County, 62 So.3d 1247 (4th DCA 2011).  However your ag operations are impacted, those are the arguments to make to the city or county as to why the specific change they’re asking you to make is not enforceable against you.

We’ve found that making efforts to compromise with your local government on some of these issues goes a long way. Consider limiting how many days a week the public can come onto the property. If you’re looking to create a wedding venue, avoid providing food or alcohol as an included service.

And above all else, just remember: despite the cheeky tone of this article, zoning and planning compliance is a highly complex area of the law that’s hard for even attorneys to understand. The best and most important way to protect your agribusiness against these issues is to know when to reach out to a professional before disaster strikes.

Questions about the Agritourism Statutes? Let’s chat. Contact us at contact@groveslaw.ag to schedule a consultation.

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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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