The Florida Senate
BILL ANALYSIS AND FISCAL IMPACT STATEMENT
(This document is based on the provisions contained in the legislation as of the latest date listed below.)
Prepared By: The Professional Staff of the Committee on Rules
BILL: CS/CS/CS/SB 88
INTRODUCER: Rules Committee; Environment and Natural Resources Committee; Judiciary Committee;
and Senator Brodeur and others
SUBJECT: Farming Operations
DATE: March 4, 2021 REVISED:
ANALYST STAFF DIRECTOR REFERENCE ACTION
1. Davis Cibula JU Fav/CS
2. Anderson Rogers EN Fav/CS
3. Davis Phelps RC Fav/CS
Please see Section IX. for Additional Information:
COMMITTEE SUBSTITUTE - Substantial Changes
I. Summary:
CS/CS/CS/SB 88 amends the Florida Right to Farm Act. The general purpose of the act is to
protect reasonable agricultural activities conducted on farm land from nuisance lawsuits. The bill
provides stronger liability protections to farms that comply with best management practices and
environmental regulations.
The definition of “farm operations” is expanded to add “agritourism” activities to the list of farm
operations that receive limited legal protections in nuisance suits and other similar civil actions.
The definition is further revised to include the generation of “particle emissions” to the list of
conditions or activities that constitute farm operations.
The bill defines “established date of operation” for an agritourism activity as the date the specific
agritourism activity commenced, providing for a separate established date of operation for an
agritourism activity than for the farm operation.
The bill defines “nuisance” to mean any interference with the reasonable use and enjoyment of
land, including, but not limited to, noise, smoke, odors, dust, fumes, particle emissions, or
vibration. The term also includes all legal claims that meet the requirements of the definition of
nuisance, regardless of whether a plaintiff designates those claims as brought in an action for
nuisance, negligence, trespass, personal injury, strict liability, or some other tort.
BILL: CS/CS/CS/SB 88 Page 2
The burden of proof that a plaintiff must meet in a nuisance action is raised to the clear and
convincing evidence standard if the claim is based upon allegations that the defendant’s conduct
did not comply with state or federal environmental laws, regulations, or best management
practices.
The bill limits those who may bring a nuisance action against a farm operation to people whose
real property that is alleged to be damaged is located within one-half mile of the alleged source
of the nuisance.
The bill limits compensatory damages in a private nuisance action to the reduction in the fair
market value of the plaintiff’s property, which may not exceed the fair market value of the
property.
The bill prohibits a plaintiff from recovering punitive damages for a farm operation in a private
nuisance action unless the alleged nuisance is based on substantially the same conduct that
resulted in either a criminal conviction or a civil enforcement action by a government
environmental regulatory agency and the conviction or enforcement action occurred within
3 years of the first act forming the basis of the nuisance action.
A losing plaintiff is liable for a farm’s litigation costs and expenses incurred defending a
nuisance action if the farm operation has been in existence for 1 year or more before the legal
action was instituted and the farm operation conforms to generally accepted agricultural and
management practices or government environmental laws.
The bill takes effect July 1, 2021.
II. Present Situation:
Background
In the 1970s, states began to identify the potential conflicts between farmers and developers as
urban sprawl crept into rural, agricultural areas. One of the initial concerns was that the
relocation of city dwellers into the agricultural areas would result in a rash of very expensive
nuisance lawsuits once the new neighbors were confronted with the sensory nature of farm life,
complete with an inescapable array of odors, loud noises, dust, and other side-effects.1
In an effort to protect farms and agricultural operations from the encroaching sprawl, states
passed anti-nuisance laws that are referred to as “Right to Farm” laws. These laws, enacted in all
50 states, protect agricultural production against some nuisance lawsuits. The laws do not grant
absolute immunity but generally provide protections for defendants based upon a “coming to the
nuisance” defense theory. These laws provide a liability shield for pre-existing agricultural
operations when changes are made to the use of nearby parcels, such that the plaintiffs are
described as “coming to the nuisance.”2 The Florida Right to Farm Act was enacted in 1979.3
1
Alexia B. Borden and Thomas R. Head, III, The “Right To Farm” In The Southeast – Does it Go Too Far? 11 No. 1 ABA
Agric. Mgmt. Committee Newsl. 8 (April, 2007).
2
Id.
3
Chapter 79-61, ss. 1-2, Laws of Fla.
BILL: CS/CS/CS/SB 88 Page 3
Nuisance
A nuisance is described as an activity, condition, or situation created by someone that
significantly interferes with another person’s use or enjoyment of his or her property. A private
nuisance affects a person’s private right that is not common to the public while a public nuisance
is an interference that affects the general public, for example, a condition that is dangerous to
health or community standards.4
The Florida Right to Farm Act
The Florida Right to Farm Act5 protects farm operations from nuisance lawsuits if the operations
comply with generally accepted agricultural and management practices.
The Florida Right to Farm Act states that a farm operation cannot be classified as a public or
private nuisance if the farm:
 Has been in operation for 1 year or more since its established date of operation;
 Was not a nuisance when it was established; and
 Conforms to generally accepted agricultural and management practices.6
However, the following four unsanitary conditions constitute evidence of a nuisance:
 The presence of untreated or improperly treated human waste, garbage, offal, dead animals,
dangerous waste materials, or gases which are harmful to human or animal life.
 The presence of improperly built or improperly maintained septic tanks, water closets, or
privies.
 The keeping of diseased animals which are dangerous to human health, unless the animals
are kept in accordance with a current state or federal disease control program.
 The presence of unsanitary places where animals are slaughtered, which may give rise to
diseases which are harmful to human or animal life.7
Additionally, a farm operation cannot be classified as a public or private nuisance due to a
change:
 In ownership,
 In the type of farm product that is produced,
 In conditions in or around the locality of the farm, or
 Made in compliance with Best Management Practices adopted by local, state of federal
agencies.8
The Florida Right to Farm Act, however, may not be construed to permit an existing farm
operation to increase to a more excessive farm operation with regard to noise, odor, dust, or
4
BLACK’S LAW DICTIONARY (11th ed. 2019).
5
Section 823.14, F.S.
6
Section 823.14(4)(a), F.S.
7
Id.
8
Section 823.14(4)(b), F.S.
BILL: CS/CS/CS/SB 88 Page 4
fumes where the existing operation is adjacent to an established homestead or business on
March 15, 1982.9,10
Florida’s Agricultural Landscape
According to the University of Florida Institute of Food and Agricultural Sciences, Florida had
47,590 farm operations covering 9.7 million acres of farmland in 2018, the most recent year for
which this information is available. Agricultural land, which consists of cropland and ranchland,
combined with forest land, comprises nearly two-thirds of the state’s entire land.11
Data provided by the U.S. Department of Agriculture notes that in 2019, Florida’s cash receipts
from the sale of agricultural commodities was $7.67 billion, ranking 18th in the nation for total
commodity sales. Florida leads the United States in the production of oranges, sugarcane, and
watermelons. The state ranks second in the nation for the production of bell peppers, cucumbers,
grapefruit, peanuts, strawberries, and tomatoes.12
Agritourism Activity
“Agritourism activity” is defined under “Agricultural Development” in chapter 570, F.S., the
Department of Agriculture and Consumer Services chapter. It includes any agricultural related
activity that is consistent with a bona fide farm, livestock operation, or ranch or in a working
forest which allows the general public to view or enjoy its activities for recreational,
entertainment, or educational purposes. These activities include farming, ranching, historical,
cultural, civic, ceremonial, training and exhibition, or harvest-your-own activities and attractions.
An agritourism activity does not include the building of new or additional structures or facilities
that are intended primarily to house, shelter, transport, or otherwise accommodate the general
public. An activity is deemed to be an agritourism activity regardless of whether the participant
paid to participate in the activity.13
Established Date of Operation
“Established date of operation” is defined under the Florida Right to Farm Act as the date the
farm operation commenced. The definition provides that:
 If the farm operation is subsequently expanded within the original boundaries of the farm
land, the established date of operation of the expansion is the same date the original farm
operation commenced.
 If the land boundaries of the farm are subsequently expanded, the established date of
operation for each expansion is deemed to be a separate and independent established date of
9
Section 823.14(5), F.S.
10
In an effort to eliminate duplication of regulatory authority over farm operations, local governments may not adopt an
ordinance or similar policy to prohibit or limit an activity of a bona fide farm operation on land that is classified as
agricultural land in accordance with statute, where the activity is regulated through implemented best management practices
or certain interim measures. The full text of this prohibition is contained in s. 823.14(6), F.S.
11
University of Florida – IFAS, Florida Agriculture & Natural Resource Facts (July 2018) published by the UF/IFAS
Economic Impact Analysis Program in 2019 and 2020.
12
U.S. Department of Agriculture, National Agricultural Statistics Service, Florida Agricultural Facts (Sept. 2020),
https://www.nass.usda.gov/Statistics_by_State/Florida/Publications/More_Features/FL2019.pdf.
13
Section 570.86(1), F.S.
BILL: CS/CS/CS/SB 88 Page 5
operation. However, the expanded operation does not divest the farm operation of a previous
established date of operation.14
Litigation
A federal class action lawsuit15 has been filed against sugarcane farmers in south Florida alleging
that the pre-harvest burning of sugarcane has caused damages to nearby individuals and property.
The defendants farm sugarcane on approximately 400,000 acres in areas south and southeast of
Lake Okeechobee. The farmers burn the outer leaves of the sugarcane during a pre-harvest burn
that takes place during a 6-month period from October through May each year. The plaintiffs
allege that the burning has diminished their property values, caused long-term health issues, and
prevented the area from growing economically.
Although the litigation is continuing through a series of pre-trial motions, the court has
determined that pre-harvest burning of sugarcane is an acceptable agricultural practice protected
by the Florida Right to Farm Act. However, the court has found that the act does not bar all of
the plaintiffs’ claims. The court ruled that the act did not protect the farmers from claims that
pre-harvest burning released harmful pollutants.
III. Effect of Proposed Changes:
The Florida Right to Farm Act (Section 1)
Legislative Findings and Purpose; Adding Agritourism
The Florida Right to Farm Act contains a section of legislative findings and purposes that
establish why reasonable agricultural activities conducted on farmland should be protected from
nuisance lawsuits that can force the premature removal of farmland from agricultural use.16 The
language notes, in part, that: agricultural production makes major contributions to the state
economy; agricultural lands cannot be replaced; agricultural activities increase tourism; and that
agriculture furthers the economic self-sufficiency of the people of the state and should be
protected. The bill adds agritourism to this section of the act such that preservation of
agricultural activities contributes to the increase of tourism and agritourism. Additionally, and as
now amended, the purpose of the act protects reasonable agricultural and complementary
agritoruism activities conducted on farmland from nuisance suits and other similar lawsuits.
Changes and Additions to Definitions in the Florida Right to Farm Act
Agritourism Activity
The definitions section of the act is amended to add a definition of “agritourism activity” and
then include it in the definition of what constitutes a farm operation. With this change,
agritourism activities receive the nuisance protections that compliant farm operations receive
under the terms of the act.
14
Section 823.14(3)(d), F.S.
15
Coffie v. Florida Crystals Corporation, 460 F. Supp. 3d 1297 (S.D. Fla. 2020).
16
Section 823.14(2), F.S.
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Farm Operation
The definition of a “farm operation” is expanded. The current definition states that a farm
operation means all conditions or activities … which occur on a farm and includes, but is not
limited to, “the marketing of produce at roadside stands or farm markets; the operation of
machinery and irrigation pumps; the generation of noise odors, dust, and fumes …” The phrase
“particle emissions” is added to the list of conditions and activities that constitute a farm
operation.
Established Date of Operation
The bill defines “established date of operation” for an agritourism activity as the date the specific
agritourism activity commenced, providing for a separate established date of operation for an
agritourism activity than for the farm operation.
Nuisance
A definition of “nuisance” is added to the Act. Nuisance is defined as any interference with the
reasonable use and enjoyment of land, including, but not limited to, noise, smoke, odors, dust,
fumes, particle emissions, or vibration. The term also includes all legal claims that meet the
requirements of the nuisance definition, regardless of whether a plaintiff designates the claim as
an action for nuisance, negligence, trespass, personal injury, strict liability, or other tort.
Lawsuit Protections: Evidence Standard and Damages
New provisions are added to the Right to Farm Act to provide additional protections for farm
operations from lawsuits.
Clear and Convincing Evidence
For a plaintiff to succeed in a nuisance action against a farm, the plaintiff must prove by “clear
and convincing evidence” that the claim arises from conduct that did not comply with state or
federal environmental laws, regulations, or best management practices.
“Clear and convincing evidence” is a standard or burden of proof which measures the level or
degree to which an issue must be proved. In civil cases, two standards of proof generally apply:
“the greater weight of the evidence standard” which applies most often in civil cases; or “the
clear and convincing evidence standard” which applies less often, and is a higher standard of
proof.
The clear and convincing standard requires that the evidence be credible and the facts which the
witness testifies to must be remembered d