IN THE SUPREME COURT OF FLORIDA 2
STEVENKOHN
Appellant,
CLE
EY
u
23 AM 0
S P a
CASE NO. SC134th DCA Case No.: 4D11-3154
L.T. Case No CACE 10048282(18)
V.
GRANT EINHORN
Appellee.
INITIAL BRIEF
OF APPELLANT
STEVEN KOHN
3841 N 513t Ave
Hollywood, FL 33021
(954) 404-7358
[email protected]
Pro se Appellant
1
C
T
TABLE OF CONTENTS
TABLE OF AUTHORITIES....................................................................................iv
THE RECORD .........................................................................................................1
PREFACE - THIS IS NOT A PCA CITATION APPEAL ......................................1
JURISDICTION ARGUMENT................................................................................2
The Supreme Court has Mandatory Jurisdiction because the Fourth District
has ruled that Florida's Right to Farm Act, [ §823.14(2), §823.14(4), and
§823.14(3)(d)] is invalid, due to its preemption by §60.05 Abatement of
Nuisances.
STATEMENT OF THE CASE AND OF THE FACTS ........................................7
SUMMARY ARGUMENT.....................................................................................10
POINT 1: This Court must reverse the Fourth District's ruling that the Right
to Farm Act is self-nullifying with respects to §823.14(2) and §823.14(4).
The Fourth District erroneously interpreted §823.14(6) to mean that any
state law that predated it takes precedence, including the very nuisance law
that the Right to Farm Act §823.14 was designed to provide protection from.
POINT 2: This Court must reverse the Fourth District's ruling because it
invalidates §823.14(4)(b), and §823.14(3)(d), by declaring the Right to Farm
Act's protections are nullified by a farm expansion of even a single animal.
POINT 3: This Court must reverse the Fourth District's ruling because the
Fourth District erroneously concluded that FS §823.14(6) applies to
residential as well as commercial farmers.
ARGUMENT........................................................................................................11
I.
The Fourth District ruled that the Right to Farm Act is self-nullifying
with respects to §823.14(2) and §823.14(4), by determining that
§823.14(6) intended to allow nuisance lawsuits to proceed due to the
fact that §60.05 predates §823.14. The Fourth District has erred.
Il
II.
The Fourth District's ruling invalidates §823.14(4)(b), and
§823.14(3)(d), by declaring the Right to Farm Act's protections are
nullified by a farm expansion of even a single animal.
III.
The Fourth District erroneously concluded that FS §823.14(6) applies
to residential as well as commercial farmers.
CONCLUSION...................................................................................................23
CERTIFICATE OF COMPLIANCE..................................................................24
CERTIFICATE OF SERVICE............................................................................24
ATTACHMENTS...........................................................................................
lll
TABLE OF AUTHORITIES
Cases:
Pages
City of Hollywood v. Kohn, 4D12-1548 Fla. 4th DCA 2013..........................9
City of Hollywood v. Kohn, 4D12-12 Fla. 4th DCA 2012..............................9
City of Hollywood v. Kohn, CACE 11016210(18) Fla. 17th CirCuit COurl...........9
Daniels v. Fla. Dep't of Health, 898 So.2d 61, 64 (Fla.2005).........................13
Fire & Cas. Ins. Co. of Conn. v. Sealey, 810 So. 2d 988, 992 ..........................5
(Fla. 1st DCA 2002).
Golf Channel v. Jenkins, 752 So.2d 561, 564 (Fla.2000)...............................13
Indus. Affiliates, Ltd. v. Testa, 770 So. 2d 202, 204 n.1 (Fla. 3d DCA 2000);.......5
J-II Investments, Inc. v. Leon County, 908 So.2d 1140 (Fla. 1st DCA 2005).......13
Lee Cnty. Elec. Co-op., Inc. v. Jacobs, 820 So.2d 297, 303 (Fla.2002)..............13
Pasco County v. Tampa Farm Services Inc., 573 So. 2d 909
(Fla. 2d DCA 1990) ...................................................3,4,9,11,17,18,19,21
Simpson v. State, 418 So.2d 984, 986 (Fla. 1982)........................................5
State v. Saufley, 574 So. 2d 1207 (Fla. 5th DCA 1991).................................5
The Florida Star v. BJF, 530 So. 2d 286 - Fla: Supreme Court 1988..................3
Wilson v Palm Beach County, 62 So. 3d 1247, 1250
(Fla. 4th DCA 2011)......................................................3,4,7,10,12,21,22
Florida Statutes
§ 60.05 Fla. Stat................................................2,4,8,10,11,14,15,16,21,23
§ 823.05 Fla. Stat.............................................................................9
IV
§823.14 Fla. Stat.............................................................2,4,7,8,10-23
Florida Appellate Rules
Fla. R. App. P. 9.030(a)(1)(A)(ii).......................................................................5,6
Fla. R. App. P. 9.330(a)...................................................................3,9
Other Authority
Burton's Legal Thesaurus, 4E. (2007).....................................................6
Merriam-Webster online dictionary (2013)...............................................5
Oxford Online Dictionary (2013)...........................................................5
Thefreedictionary.com (2013)..............................................................6
THE RECORD
The Fourth District will provide the Record in accordance with Appellate
Procedures. For the convenience of the Court, the few relevant orders, cases, and
statutes references in this brief will be provided as attachments.
PREFACE
THIS IS NOT A PCA CITATION APPEAL
The pro se Appellant is aware that PCA Citation judgments of the District
Court are not customarily subject to review by the State Supreme Court.
The Florida Star v. BJF, 530 So. 2d 286 - Fla: Supreme Court 1988 lays the
foundation in stating that there must be an "actual conflict discernible" in the
opinion cited, and it is well known in an ordinary PCA Citation, a conflict can be
implied but is not usually discernible.
In the instant case, after a PCA, the appellant requested a written opinion
based on apparent conflict with one specific law and one specific case...a case
which explicitly states that a minor expansion of an existing farm is protected from
a nuisance suit under Florida's Right to Farm Act. The Fourth District responded
by denying the motion, but also providing a citation in the denial order which
discernibly reveals the Fourth District's view that the Right to Farm Act's
protection against nuisance suits is completely invalid , and that even the most
minor expansion of an existing farm (consisting of a single animal) is not protected
1
under the Act. Because the Citation is directed specifically at the sole question and
case raised in the Motion for Written Opinion (and is not directed at the PCA),
there is no mystery or ambiguity as to how and why the Fourth District ruled the
way it did, and it is therefore not a PCA Citation; it is a citation to the Motion for
Written Opinion. The discernible reason for the PCA that was requested was
provided, albeit not in the manner the appellant asked for. Because the answer is
that the Right to Farm Act is invalid, mandatory jurisdiction is invoked rather than
discretionary jurisdiction.
JURISDICTION ARGUMENT
The Supreme Court has Mandatory Jurisdiction because the Fourth District
has ruled that Florida's Right to Farm Act, [ §823.14(2), §823.14(4), and
§823.14(3)(d)] is invalid, due to its preemption by §60.05 Abatement of Nuisances.
The Fourth District also affirmed the ruling of the lower court to the same
effect.
The removal of protection from nuisance lawsuits invalidates the Right to
Farm Act, which was enacted explicitly to protect residential and commercial
farmers from nuisance suits filed under §60.05.
In The Florida Star v. BJF, 530 So. 2d 286 - Fla: Supreme Court 1988, this
Court held that a citation can establish grounds for jurisdiction,
"...that there be some statement or citation in the opinion that
hypothetically could create conflict if there were another opinion
reaching a contrary result."
The Court also stated in the same decision that in order for an order based on
a citation to be reviewable by the State Supreme Court, there must be an "actual
conflict discernible" in the opinion cited.
On February 20, 2013, the Fourth District Court of Appeal issued a Per
Curiam Affirmed order, with no opinion or citation, affirming the ruling of the
Circuit Court that the Right to Farm Act is invalid.
Kohn Motioned for a Written Opinion, pursuant to Rule 9.330(a), stating
"...the Court's affirmance of the trial court's decision to enjoin the Kohn's
existing farm operation as a nuisance, directly conflicts with the premise and
spirit of the Second District's opinion in Pasco County v. Tampa Farm
Services Inc., 573 So. 2d 909 (Fla. 2d DCA 1990)(holding that legislature
intended to protect existing farmers from nuisance suits).
A written opinion explaining why Section 823 (Florida's Right to Farm Act)
is not violated when a trial court enjoins an existing farm operation which
employs universally accepted farming practices, would provide a basis for
invoking discretionary supreme court review."
On April 4, 2013, the District Court Denied the Motion, providing a citation
to Wilson v Palm Beach County, 62 So. 3d 1247, 1250 (Fla. 4th DCA 2011)
instead of a written opinion. On April 10, 2013, the Court sent the case to West
Publishing so that their ruling could be utilized, as an example, by the courts in
future proceedings.
3
It is common knowledge that the purpose of a citation is to provide an
explanation for the Court's decision.
It is clearly discernable that the citation in this case was intended to
demonstrate conflict with Pasco and was intended to invalidate the provisions of
the Right to Farm Act that protect residential and commercial farmers from
nuisance suits.
The subject matter of the Wilson case was a determination that the Right to
Farm Act did not preempt a County's enforcement of ordinances enacted prior to
its passage. The only law or ordinance upon which the instant lawsuit filed and
ruling was based was §60.05 (Abatement of nuisances), and the Citation was
issued as the specific response to the question raised in the Motion for Written
Opinion.
The citation to Wilson v Palm Beach County reveals that the Fourth District
Court of Appeal has invalidated Florida's Right to Farm Act subsections
§823.14(2) and §823.14(4)[which protect residential and commercial farmers from
nuisance suits], based on the fact that Florida's nuisance statute §60.05 predates it.
No other conclusion is possible.
The citation to Wilson is intended to clearly communicate and reveal the
rationale behind the ruling of the Fourth District Court of Appeal (otherwise there
is no purpose to a citation). The "declaring" condition of Rule 9.030(a)(1)(A)(ii)
has been met, and this Court has mandatory jurisdiction.
Although the decision of the Fourth District does not explicitly use the word
"declare", Florida Courts place substance over form. "...we note the Supreme
Court's admonition that we seek to avoid, not foster, a hypertechnical application
of the law and to avoid placing form over substance." State v. Saufley, 574 So. 2d
1207 (Fla. 5th DCA 1991), citing Simpson v. State, 418 So.2d 984, 986 (Fla.
1982). See also Indus. Affiliates, Ltd. v. Testa, 770 So. 2d 202, 204 n.1
(Fla. 3d DCA 2000); Fire & Cas. Ins. Co. ofConn. v. Sealey, 810 So. 2d
988, 992 (Fla. 1st DCA 2002).
Under Florida Rule of Appellate Procedure 9.030(a)(1)(A)(ii), this Court
shall review decisions of district courts of appeal declaring invalid a state statute.
A review of the plain language definition of the term declaring establishes
what the plain and ordinary meaning is. Dictionaries abound, and while each
presents its own variation of the definition of the word declaring, they are all quite
similar. A sampling is provided:
The Merriam-Webster online dictionary defines "declare" as:
1 : to make known formally, officially, or explicitly
2: to make clear
3: to make evident : show
4: to state emphatically : affirm
The Oxford Online Dictionary describes the origin of the word "declare" as
5
"Middle English: from Latin declarare, from de- 'thoroughly'+ clarare
'make clear' (from clarus 'clear')."
Thefreedictionary.com defines "declare" as
"advance, affirm, announce, assert, asseverate, assure, aver, avow,
bruit, claim, come out, communicate, contend, declarare, disclose,
divulge, enounce, enunciate, herald, inform, maintain, make a
declaration, make a statement, make known, praedicare, predicate,
profess, profiteri, pronounce, put forward, reveal, say, set forth, state,
tell, utter."
Burton's Legal Thesaurus, 4E. Copyright © 2007 by William C. Burton,
listing synonyms for "declare", provides:
acknowledgment, adjudication, adjuration, admission, affirmance,
affirmation, alibi, allegation, assertion, asseveration, assurance,
attestation, averment, avouchment, avowal, brevet, certainty,
certificate, certification, claim, cognovit, comment, common
knowledge, communication, conclusion, confession, confirmation,
count, declaratory judgment, decree, determination, dictum, directive,
disclosure, discovery, edict, expression, judgment, measure, notice,
notification, observation, opinion, order, parole, platform,
proclamation, promise, pronouncement, proposition, recommendation,
reference, remark, representation, resolution, speech, statement,
surety, testimony
The citation to Wilson (as the response to the sole question raised in the
Motion for Written Opinion) is intended to clearly communicate and reveal the
rationale behind the ruling of the Fourth District Court of Appeal (otherwise there
is no purpose to a citation). It is clearly discernable. The "declaring" condition of
Rule 9.030(a)(1)(A)(ii) has been met, and this Court has mandatory jurisdiction.
6
For the purposes of this appeal, the entire argument rests on matters of law
and court precedents. Accordingly the standard of review is de novo.
STATEMENT OF THE CASE AND FACTS
Appellant Steven Kohn purchased and moved into his home in Hollywood
Florida in September 2008 and immediately commenced residential farming
operations as defined by §823.14 (Florida's Right to Farm Act) by installing
several dozen fruit bearing trees and other edible plantings. While Mr. Kohn's
home is zoned as "residential", "agriculture" is specified by Hollywood's
ordinances as an allowed land use.
After attending the Broward County 4H fair in November 2008, Kohn
expanded his farm operation by adding approximately twelve one day old chicks,
which were raised to adulthood. The Kohns used the chickens for their eggs, for
insect management, for fertilizer, and as pets. The chickens were kept in a coop at
night, and by day had full run of the 1,500 square foot back yard of the Kohns,
which is surrounded by a 6 foot tall wood privacy fence. There were no roosters.
Approximately a year later, in October 2009, Appellee Grant Einhorn
purchased and moved into the home next to Kohn. Einhorn was made aware of the
presence of the then adult chickens prior to entering into the contract to purchase.
Approximately 3 months after Einhorn moved in, the chickens suddenly began to
annoy him.
A year later, in December 2010, Einhorn filed the instant lawsuit pursuant to
Florida Statutes §60.05 seeking the removal of Kohns chickens as a nuisance.
In March 2011, the Circuit Court Judge visited the Kohns property, detected
no nuisance conditions at the time, and denied a temporary injunction.
Kohn then filed a Motion to Dismiss the lawsuit citing the protections of
§823.14(4). The motion was denied without a hearing.
On August 3-4, 2011, a hearing was held. Testimony was provided that
Hollywood code enforcement never detected a nuisance and that the chickens were
not as loud as an average dog. Testimony was also provided that the plaintiff
complained to Broward County Health Department several times about flies and
bad odors, and that the Health Department never detected conditions that were
conducive to a nuisance. Testimony was also provided, and not challenged, that
the chickens were being raised in accordance with best practices, including being
housed in a coop that was cleaned daily. Based on testimony that some of the
neighbors did not like the intermittent sound that the chickens made when laying
eggs, and claimed to be disturbed by them, the Court granted an injunction that
enjoined the entire farm operation, not allowing the Kohns to possess even a single
chicken or duck, ever. The ruling also stated that it was not dispositive whether
8
Kohn was in violation of a local ordinance by owning the animals: "Although the
Kohns have been found in violation of a Hollywood ordinance, this Court does not
rely on that fact." (The circuit court later ruled in CACE 11016210(18) that
Hollywood City was not correctly enforcing their ordinance; the circuit court's
ruling was subsequently upheld twice by the Fourth District in 4D12-12 and 4D12-
1548).
Kohn appealed the injunction ruling on three grounds:
i)
whether the trial court erred in granting an injunction under Florida
Statute 823.05 where no public nuisance was found and no public
nuisance was established by clear and convincing evidence
ii)
whether Florida's Right to Farm Act may serve to shield residential
farm operations from nuisance suits, and
iii)
whether the injunction granted was unduly harsh.
On February 20, 2013, the Fourth District Court of Appeal issued a PCA,
with no opinion or citation, affirming the ruling of the Circuit Court that the Right
to Farm Act is invalid.
Kohn Motioned for a Written Opinion, pursuant to Rule 9.330(a), stating
"...the Court's affirmance of the trial court's decision to enjoin the
Kohn's existing farm operation as a nuisance, directly conflicts with
the premise and spirit of the Second District's opinion in Pasco
County v. Tampa Farm Services Inc., 573 So. 2d 909 (Fla. 2d DCA
1990)(holding that legislature intended to protect existing farmers
from nuisance suits).
9
A written opinion explaining why Section 823 (Florida's Right to
Farm Act) is not violated when a trial court enjoins an existing farm
operation which employs universally accepted farming practices,
would provide a basis for invoking discretionary supreme court
review."
On April 4, 2013, the Court Denied the Motion, providing a citation to
Wilson v Palm Beach County, 62 So. 3d 1247, 1250 (Fla. 4th DCA 2011) instead
of a written opinion. On April 10, 2013, the Court sent the case to West Publishing
so that their ruling could be utilized, as an example, by the courts in future
proceedings.
SUMMARY ARGUMENT
POINT 1: This Court must reverse the Fourth District's ruling that the Right
to Farm Act is self-nullifying with respects to §823.14(2) and §823.14(4). The
Fourth District erroneously interpreted §823.14(6) to mean that any state law that
predated it takes precedence, including the very nuisance law that the Right to
Farm Act §823.14 was designed to provide protection from. The Right to Farm
Act was enacted in order to protect residential and commercial farmers from
nuisance lawsuits. The Fourth District's conclusion is that the Act intended to
allow nuisance lawsuits filed under the authority of §60.05 is demonstrably wrong.
POINT 2: This Court must reverse the Fourth District's ruling because it
invalidates §823.14(4)(b), and §823.14(3)(d), by declaring the Right to Farm Act's
protections are nullified by a farm expansion of even a single animal. Regarding
10
animals, there is no such thing as a farm expansion that includes less than a single
animal; therefore this also brings the Fourth District's ruling into direct conflict
with Pasco (which would also provide discretional jurisdiction.)
POINT 3: This Court must reverse the Fourth District's ruling because the
Fourth District erroneously concluded that FS §823.14(6) applies to residential as
well as commercial farmers. FS §823.14(6) only applies to farmlands that are
otherwise being regulated through implemented best management practices or
interim measures developed by the Department of Environmental Protection, the
Department of Agriculture and Consumer Services, or water management districts
and adopted under chapter 120 as part of a statewide or regional program. In other
words, even if FS §823.14(6) actually removes the protection against nuisance
suits, it only does so for commercial farmers and not residential farmers.
ARGUMENT
I.
The Fourth District ruled that the Right to Farm Act is selfnullifying with respects to §823.14(2) and §823.14(4), by
determining that §823.14(6) intended to allow nuisance lawsuits
to proceed due to the fact that §60.05 predates §823.14. The
Fourth District has erred.
The standard of review is de novo. The Fourth District, via citation,
indicated that their reason for affirming the ruling of the Circuit Court that the
11
Right to Farm Act is invalid, was to be found in Wilson v Palm Beach County, 62
So. 3d 1247, 1250 (Fla. 4th DCA 2011).
In Wilson, the Court summarized the case as follows:
"A landowner appeals a summary judgment in favor of Palm Beach
County declaring that the Right to Farm Act did not preempt the
County's enforcement of ordinances enacted prior to its passage. The
court also determined that the special permitting requirements of
county ordinances were not covered by the Act, because they did not
limit farming operations. Finally, the court determined that the County
enacted its development code pursuant to its home rule powers as
much as Chapter 163, and therefore it had the power to regulate
agricultural uses pursuant to its home rule powers even though
Chapter 163 excluded agricultural uses from its terms. Because the
Right to Farm Act does not prohibit enforcement of ordinances in
existence at the time of the adoption of the Act, we affirm in part the
declaratory judgment. We reverse, however, as to the court's
conclusion that the special permit conditions and setbacks did not
limit farming operations, as genuine issues of material fact remain.
We affirm the determination that the county ordinances are not
preempted by the exclusion of agricultural uses from section
163.3164, Florida Statutes."
The conclusions of the Court with respect to the Right to Farm Act are
unambiguous:
"Right to Farm Act did not preempt the County's enforcement of
ordinances enacted prior to its passage."
The source of this conclusion is found later in the same ruling:
"Section §823.14(6), Florida Statutes, provides in
relevant part: It is the intent of the Legislature to
eliminate duplication of regulatory authority over farm
operations as expressed in this subsection. Except as
otherwise provided for in this section and s. 487.051(2),
12
and notwithstanding any other provision of law, a local
government may not adopt any ordinance, regulation,
rule, or policy to prohibit, restrict, regulate, or otherwise
limit an activity of a bona fide farm operation on land
classified as agricultural land pursuant to s. 193.461,
where such activity is regulated through implemented
best management practices or interim measures
developed by the Department of Environmental
Protection, the Department of Agriculture and Consumer
Services, or water management districts and adopted
under chapter 120 as part of a statewide or regional
program.
This subsection of the Right to Farm Act became effective on
June 16, 2000. See Laws of Fla., Ch. 2000-308, § 39.
Courts must determine legislative intent primarily from the
language of the statute. See GolfChannel v. Jenkins, 752 So.2d
561, 564 (Fla.2000). "When a statute is clear and unambiguous,
courts will not look behind the statute's plain language for
legislative intent or resort to rules of statutory construction to
ascertain intent." Lee Cnty. Elec. Co-op., Inc. v. Jacobs, 820
So.2d 297, 303 (Fla.2002). The statute's plain and ordinary
meaning must control, unless this leads to an unreasonable
result or a result clearly contrary to legislative intent. Daniels v.
Fla. Dep't ofHealth, 898 So.2d 61, 64 (Fla.2005).
Applying those principles, in J-II Investments, Inc. v. Leon
County, 908 So.2d 1140 (Fla. 1st DCA 2005), the First District
considered identical language in section 163.3162, the
Agricultural Lands and Practices Act (ALPA), and held that the
statute's prohibition on counties adopting ordinances relating to
agriculture did not prevent the enforcement of provisions
already in place."
The stated purpose of §823.14(6) is to prevent a duplication of regulation on
land classified as agricultural land pursuant to s. 193.461. The rule does not apply
to the residential farmer growing fruits and vegetables or raising chickens, where
13
there is no regulation by state agencies that could become redundant. It is
noteworthy that §823.14(6) also uses the explicit language "in this subsection",
indicating that the provisions only apply to farm operations occurring on land
classified as agricultural land pursuant to s. 193.461.
The only law or ordinance upon which the injunction in the instant suit was
based was §60.05 Abatement ofNuisances.
The Fourth District misinterpreted s. §823.14(6) in two important ways: 1)
by applying it to land other than agricultural land pursuant to s. 193.461, and 2) by
interpreting the preemption of ordinances extant prior to 1982 to also include
§60.05 (Abatement ofNuisances).
The legislative intent of §823.14 is found in §823.14(2)
(2) LEGISLATIVE FINDINGS AND PURPOSE.-The
Legislature finds that agricultural production is a major
contributor to the economy of the state; that agricultural lands
constitute unique and irreplaceable resources of statewide
importance; that the continuation of agricultural activities
preserves the landscape and environmental resources of the
state, contributes to the increase of tourism, and furthers the
economic self-sufficiency of the people of the state; and that the
encouragement, development, improvement, and preservation
of agriculture will result in a general benefit to the health and
welfare of the people of the state. The Legislature further finds
that agricultural activities conducted on farm land in urbanizing
areas are potentially subject to lawsuits based on the theory of
nuisance and that these suits encourage and even force the
premature removal of the farm land from agricultural use. It is
the purpose of this act to protect reasonable agricultural
activities conducted on farm land from nuisance suits.
(emphasis added).
14
The notion that the Right to Farm Act, created to prevent nuisance suits, can
be interpreted to mean that it intended to allow nuisance suits due to the previous
existence of §60.05, is a conclusion that cannot be supported by the simply stated
legislative intent.
The Act goes further in clarifying the limited conditions under which a farm
can be declared a nuisance:
§ 823.14(4) FARM OPERATION NOT TO BE OR BECOME A
NUISANCE.(a) No farm operation which has been in operation for 1 year or
more since its established date of operation and which was not a
nuisance at the time of its established date of operation shall be a
public or private nuisance if the farm operation conforms to generally
accepted agricultural and management practices, except that the
following conditions shall constitute evidence of a nuisance:
1. 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.
2. The presence of improperly built or improperly maintained
septic tanks, water closets, or privies.
3. The keeping of diseased animals which are dangerous to
human health, unless such animals are kept in accordance with
a current state or federal disease control program.
4. The presence of unsanitary places where animals are
slaughtered, which may give rise to diseases which are harmful
to human or animal life.
(b) No farm operation shall become a public or private nuisance as a
result of a change in ownership, a change in the type of farm product
being produced, a change in conditions in or around the locality of the
farm, or a change brought about to comply with Best Management
Practices adopted by local, state, or federal agencies if such farm has
been in operation for 1 year or more since its established date of
operation and if it was not a nuisance at the time of its established date
of operation.
15
The notion that the Right to Farm Act, created to prevent nuisance suits, can
be interpreted to mean that it intended to allow nuisance suits against the sounds of
a few clucking chickens, due to the previous existence of §60.05, is a conclusion
that cannot be supported by the simply stated legislative intent or the terms of
§823.14(4) which specify the conditions under which a nuisance suit would be
allowable.
II.
The Fourth District's ruling invalidates §823.14(4)(b), and
§823.14(3)(d), by declaring the Right to Farm Act's protections
are nullified by a farm expansion of even a single animal.
The standard of review is de novo. In the instant case, the injunction granted
was total. Not a single chicken or duck of a current or future batch would ever be
permitted. Protections for farm expansions are covered under §823.14(3)(d):
d) "Established date of operation" means the date the farm operation
commenced. If the farm operation is subsequently expanded within
the original boundaries of the farm land, the established date of
operation of the expansion shall also be considered as the 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 operation. The expanded operation shall not divest
the farm operation of a previous established date of operation.
By retroactively predating the farm's expansion (within the original
boundaries)to the original date of inception of the farm, the Act guarantees that an
increase in produce or livestock cannot be considered grounds for declaring a
nuisance.
16
The Motion for Written Opinion asked for an opinion explaining how the
District Court's ruling did or did not conflict with Pasco and the protections of the
Right to Farm Act.
The Pasco ruling draws important parallels to the instant case and is one of
the only cases available that describes the attitude of the Florida Courts toward the
Right to Farm Act's protection from nuisance suits. In order to see it in the proper
context, the entire ruling is inserted below:
"Pasco County appeals a final judgment which enjoins its
enforcement of waste disposal ordinances against Tampa Farm
Service, Inc. The trial court determined that the activities of Tampa
Farm were protected under the Florida Right to Farm Act, section
§823.14, Florida Statutes (1987). From a review of the record, we
believe that the trial court misinterpreted this statutory right to farm
and applied an incorrect standard in determining that Tampa Farm's
activities did not constitute a "more excessive farm operation with
regard to ... odor." Accordingly, we reverse the judgment and remand
for a new trial.
Tampa Farm is primarily involved in commercial egg and poultry
production in Hillsborough County. Since November 1977, the Tampa
Farm facilities in Hillsborough County have maintained a population
of 1.5 to 2 million chickens. In addition to eggs and meat, the Tampa
Farm operation produces a great quantity of poultry manure, a byproduct with less desirable and less marketable characteristics.
Tampa Farm also owns approximately 849 acres of agricultural
property located at three different locations in unincorporated Pasco
County. Since 1977, Tampa Farm has used this property for hay
production. Tampa Farm has been able to dispose of its poultry
manure as soil enrichment in these hayfields. From 1977 to 1983,
Tampa Farms used an agricultural method which allowed the manure
to be spread in a dry and relatively odor-free state.
17
In 1983, Tampa Farm began using a different type of chicken housing
which led to more frequent collection of manure. Consequently,
Tampa Farm changed from a dry to wet manure distribution process.
Tampa Farm began spraying the hayfields with many truckloads of
liquid manure on a weekly, if not daily, basis. It is undisputed that the
change from dry manure to wet manure resulted in a substantial
increase in the locale's odor. Indeed, to avoid extensive testimony, the
parties stipulated that:
Wet chicken manure, used as fertilizer, is more odious than dry
chicken manure, and the odor from the chicken manure, used as
fertilizer, has increased since March of 1982.
Although the trial judge did not personally experience this problem,
he did receive testimony from people who lived in the area for many
years. They all testified that the problem with odor and flies greatly
increased upon the change in fertilizer.
In August and September of 1987, prompted by the increase in odor
emanating from the Pasco property, Pasco County cited Tampa Farm
for violations of the County's waste and garbage disposal ordinances.
Tampa Farm filed the action below 911*911 requesting a declaratory
judgment and an injunction against the enforcement of the ordinances
in Pasco County. Tampa Farm maintained that its operations in both
Hillsborough and Pasco Counties were protected by the Florida Right
to Farm Act. The trial court agreed and entered a final judgment
restraining Pasco County from enforcing its environmental
regulations.
In order to understand the error which occurred in the trial court, it is
important to analyze three subsections of the Florida Right to Farm
Act separately. Section §823.14(4)(a) protects a farm which has been
established for at least one year from being declared a public or
private nuisance "if the farm operation conforms to generally accepted
agricultural and management practices."[1] Subsection (4)(a) contains
four exceptions which are not material to this case; however, it is
noteworthy that the four exceptions involve activities which would
rarely, if ever, be regarded as acceptable agricultural practices.
18
Section §823.14(4)(b) protects an established farm from being
declared a nuisance merely because of: 1) a change in ownership, 2) a
change in the type of farm product being produced, or 3) a change in
the conditions in or around the locality of the established farm. Thus,
Tampa Farms is free to sell the farm, grow strawberries, or allow
urban development in the neighborhood without fear of a lawsuit to
abate its activities.
Subsection (5) of section §823.14 is the critical subsection in this
case.[2] Neither the parties, the trial court, nor this court are aided by
any precedent interpreting the statutory language. Under this
subsection, any "change to a more excessive farm operation with
regard to noise, odor, dust, or fumes," is not afforded the statutory
protection if the farm was adjacent to an established homestead or
business on March 15, 1982. It is undisputed that the hayfields in
Pasco County were adjacent to homesteads and businesses in 1982.
The Act broadly defines "farm operation."[3] Because the generation
of odors falls within that definition, it is clear that the change from dry
fertilizer to more odiferous wet fertilizer is a change in farm
operation. Hence, the critical question is whether it is a "more
excessive" operation.
Tampa Farms argued in the trial court and in this court that so long as
it continues to raise chickens and hay, and does not increase the size
of the operation, it can make virtually any change in specific farm
practices with impunity, if the new practice is a generally accepted
agricultural practice. 912*912 Thus, Tampa Farms maintains that it
may use any agriculturally acceptable fertilizer, herbicide, or other
procedure which is developed in the future to produce hay and
chickens - no matter how disruptive to its neighbors - because the
methods it used in 1982 were legal. Tampa Farms essentially
convinced the trial court that a change was not excessive under
section §823.14(5) if it was a generally accepted agricultural practice
under section §823.14(4)(a). The statutory language and the goals of
the Act do not support this interpretation. Even if a practice is
agriculturally acceptable, it may cause unreasonable degradation for
the established neighborhood. This seems to be the very problem
which the exception in section §823.14(5) was designed to solve.
19
Statutes creating a "right to farm" are of recent origin. Generally,
these statutes are intended to preserve productive land for agricultural
purposes and to protect the established farmer from the demands of
"sprawling urban development." Hanna, "Right to Farm" Statutes The Newest Tool in Agricultural Land Preservation, 10
Fla.St.U.L.Rev. 415 (1982). The goals and purposes of such statutes
are meritorious. The legislature certainly has valid reasons to protect
established farmers from the expense and harassment of lawsuits
aimed at declaring this vital industry to be a nuisance.
On the other hand, the scientific technology of any industry, including
agriculture, may undergo changes which are acceptable within the
industry and yet very detrimental to the industry's neighbors. We do
not interpret the Florida Right to Farm Act as an unfettered license for
farmers to alter the environment of their locale merely because the
practices which they used in 1982 were acceptable at that time.
Technologies which are implemented by farmers after 1982 are
subject to litigation raising claims in nuisance and to reasonable
governmental regulations.[4] It may be that neither the court nor the
local government can require the farm owner, under a nuisance
theory, to comply with requirements more stringent than those
existing in 1982, but the government has the power to enforce those
historic levels.
In light of the purposes of the Act, we do not interpret a "more
excessive farm operation" to include minor odor changes or minimal
degradation of the local environment. The Act seems to afford farmers
protection for these minor changes but does not afford protection for
more "excessive" changes. Thus, a court or a local government is free
to regulate changes in agricultural practices only if those changes
involve significant or substantial degradation in the locale. We admit
this line is difficult to define and would observe that the legislature
has given the courts little assistance in this process. In this case,
however, the evidence strongly supports a finding of a substantial
change in the odor of the locale.
Thus, we remand this case to the trial court for a new trial to
determine whether the change in fertilizer has resulted in a substantial
degradation of the locale that falls within section §823.14(5) and, if
so, to determine whether the county's regulations are valid under
20
traditional nuisance rules to the extent that they regulate degradation
from the 1982 threshold.
Reversed and remanded."
In Pasco, the operation involved a negative change in manure handling for a
constant population of 1,500,000 to 2,000,000 chickens on 849 acres (chicken
density of 1700 to 2400 chickens per acre), and the District Court ruled that the
change might be a substantial degradation of the locale and remanded the
evaluation of that back to the Circuit Court. The Court also stated that the Act
afforded protection for minor changes in the operation that do not represent a
substantial degradation of the locale. In the instant case, the number of chickens
involved was usually less than 20, on 0.186 acres, for a density of up to 107
chicken per acre, a density that is miniscule compared with Tampa Farm Service.
In the instant case, the District Court was asked how the principles espoused
in Pasco and the Right to Farm Act were not violated by completely enjoining a
farm operation down to the very last chicken. The answer was to be found in
Wilson; that § 60.05 completely preempts the nuisance protections of the Act.
Additionally, since Kohn's farm expansion (chickens) should have been protected
under §823.14(3)(d) and/or §823.14(4)(b), the District Court has invalided both
§823.14(3)(d) and §823.14(4)(b).
If the current ruling is allowed to stand, it would mean that the next time a
party wants to sue Tampa Farm Service Inc (or any other poultry operation) for a
21
nuisance, they need only wait until the next chick is hatched, and then the ENTIRE
operation can be enjoined, because §823.14(3)(d) and §823.14(4)(b) no longer
apply.
In sum, but applying Wilson to the instant lawsuit, not only has the Fourth
District invalidated the Right to Farm Act, but it has completely reversed it to the
point where a farm can be sued for adding a single animal, and such a farm can be
enjoined from having any animals, ever, as a result.
III. The Fourth District erroneously concluded that FS §823.14(6)
applies to residential as well as commercial farmers.
§823.14(6) begins with:
(6) LIMITATION ON DUPLICATION OF GOVERNMENT
REGULATION.- It is the intent of the Legislature to eliminate
duplication of regulatory authority over farm operations as expressed
in this subsection.
The standard of review is de novo. This language reveals that the provisions
of §823.14(6) ONLY apply to the types of farms described in the subsection. If the
types of farms mentioned in the subsection were the only types of farms protected
by the Right to Farm Act, there would be no use for the words "in this subsection."
The conclusion is obvious: farm operations that take place on lands that are
not "a bona fide farm operation on land classified as agricultural land pursuant to s.
193.461" are still protected from nuisance suits by the Right to Farm Act, and are
22
not subject to the provisions of §823.14(6). The Fourth District was in error to
conclude otherwise.
CONCLUSION
The Florida Right to Farm Act was voted into law in order to protect
residential and commercial farmers from nuisance lawsuits. The ruling of the
Fourth District that the Right to Farm Act is invalid due to the preemption of
§60.05 Abatement of Nuisances is not supported by the legislation or by the case
law. The ruling of the Fourth District must be reversed. The injunction granted by
the Circuit Court must be vacated, and the Circuit Court, on remand, instructed to
dismiss the Verified Complaint.
23
CERTIFICATE OF COMPLIANCE
I HEREBY CERTIFY this Brief has been prepared using Times New
Roman 14 point font.
CERTIFICATE OF SERVICE
I certify that a true and correct copy of the foregoing was sent to
KEITH D. SILVERSTEIN, P.A. 1177 Kane Concourse, Suite 230 Bay Harbor
Islands, Florida 33154.
Steven Kohn
Appellant - pro se
3841 N 51st Ave
Hollywood, FL 33021
Phone: (954) 404-7358
kohn@
nk. et
BY:
Steven Kohn
24
IN THE CIRCUIT COURT OF THE
17* JUDICIAL CIRCUIT, IN AND FOR
BROWARD COUNTY, FLORIDA
CASE NO.
GRANT EINHORN and SANDRA
EINHORN, as husband and wife,
1004828
Plaintiffs,
18
STEVENKOHN and RENEE KOHN
alk/a SAHRA SAMIR,
Defendants.
VERIFIED COMPLAINT, REQUEST FOR
TEMPORARY AND PERMANENT INJUNCTION
AND DEMAND FOR JURY TRIAL
Plaintiffs, GRANT EINHORN and SANDRA EINHORN as
d and wIfe
("EINHORN") hereby file this verified complaint against the defend ts,
RENEE KOHN ("KOHN"), for a temporary and permanent injunction
v olati n
City-of
Hollywood Code of Ordinances, and other relief and in support thereofallege the following:
1.
This is an action for damages that exceed fifteen thousand dollars ($15,000).
2.
All conditions precedent to the bringing of this action have been performed, have
occurred, or have been waived.
3.
Plaintiffs, EINHORN, at all times material to this verified complaint, have been
and are husband and wife, residing at the property located at 3821 North 51" Avenue, in the City of
Hollywood, County of Broward, State of Florida.
4.
Pursuant to Fla. Stat. 60.05, plaintiffs EINHORN have the power to sue and the
power to seek equitable relief for the abatement of a nuisance.
5.
Defendant STEVEN KOHN, is an individual who is the fee simple owner of
property legally described as Emerald Hills 68-26 B, Lot 12, Block 2 in the Public Records of
Broward County, Florida (the "Property"). The Property is Folio number 752303, and has a street
address 3841 North 51" Avenue, in the City of Hollywood, County of Broward, State of Florida
6.
Defendants KOHN, at all times material to this verified complaint, have resided at
the Property.
7.
This court has jurisdiction pursuant to Fla. Stat 26.01.
FACTS MATERIAL TO ALL COUNTS
8.
The defendants' Property is a single family home, located in the residential
042
neighborhood of Emerald Hills and surrounded on all sides by similar single family residences.
Attached to this verified complaint as Exhibit A is an aerial map of the KOHN Property in relation
to the surrounding residences.
9.
Plaintiffs EINHORN and defendants KOHN are neighbors, sharing a contiguous
property line as depicted in Exhibit A and is incorporated herein by reference.
10.
This action arises out of the fact that, during all times material to this action,
defendants have maintained and housed chickens and/or goat(s) on the Property in violation of
section 92.02(A) of the City of Hollywood Code of Ordinances, which provides as follows:
§ 92.02 KEEPING OF ANIMALS AND FOWL WITHIN CITY PROHIBITED;
EXCEPTIONS.
(A)
The maintaining of slaughterhouses within the city is prohibited. The
keeping of poultry, dogs, cattle and other domestic or wild animals within the city
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The 2012 Florida Statutes
Title VI
CIVIL PRACTICE AND PROCEDURE
Chapter 60
INJUNCTIONS
View Entire Chapter
60.05
Abatement of nuisances.(1) When any nuisance as defined in s. 823.05 exists, the Attorney General, state attorney, city attorney,
county attorney, or any citizen of the county may sue in the name of the state on his or her relation to enjoin
the nuisance, the person or persons maintaining it, and the owner or agent of the building or ground on which
the nuisance exists.
(2) The court may allow a temporary injunction without bond on proper proof being made. If it appears by
evidence or affidavit that a temporary injunction should issue, the court, pending the determination on final
hearing, may enjoin:
(a) The maintaining of a nuisance;
(b) The operating and maintaining of the place or premises where the nuisance is maintained;
(c) The owner or agent of the building or ground upon which the nuisance exists;
(d) The conduct, operation, or maintenance of any business or activity operated or maintained in the
building or on the premises in connection with or incident to the maintenance of the nuisance.
The injunction shall specify the activities enjoined and shall not preclude the operation of any lawful business
not conducive to the maintenance of the nuisance complained of. At least 3 days' notice in writing shall be
given defendant of the time and place of application for the temporary injunction.
(3) Evidence of the general reputation of the alleged nuisance and place is admissible to prove the
existence of the nuisance. No action filed by a citizen shall be dismissed unless the court is satisfied that it
should be dismissed. Otherwise the action shall continue and the state attorney notified to proceed with it. If
the action is brought by a citizen and the court finds that there was no reasonable ground for the action, the
costs shall be taxed against the citizen.
(4) On trial if the existence of a nuisance is shown, the court shall issue a permanent injunction and order
the costs to be paid by the persons establishing or maintaining the nuisance and shall adjudge that the costs
are a lien on all personal property found in the place of the nuisance and on the failure of the property to bring
enough to pay the costs, then on the real estate occupied by the nuisance. No tien shall attach to the real
estate of any other than said persons unless 5 days' written notice has been given to the owner or his or her
agent who fails to begin to abate the nuisance within said 5 days, in a proceeding abating a nuisance pursuant
to s. 823.10 or s. 823.05, if a tenant has been convicted of an offense under chapter 893 or s. 796.07, the
court may order the tenant to vacate the property within 72 hours if the tenant and owner of the premises are
parties to the nuisance abatement action and the order will lead to the abatement of the nuisance.
(5) If the action was brought by the Attorney General, a state attorney, or any other officer or agency of
state government; if the court finds either before or after trial that there was no reasonable ground for the
action; and if judgment is rendered for the defendant, the costs and reasonable attorney's fees shall be taxed
against the state.
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History.-ss. 2, 3, 4, ch, 7367, 1917; RGS 3223-3226; CGL 5029-5032; s. 1, ch. 20467, 1941; s. 2, ch. 29737, 1955; s. 15, ch.
67-254; s. 1, ch. 71-268; s. 14, ch. 73-334; s. 1, ch. 77-268; s. 8, ch. 87-243; s. 318, ch. 95-147; s. 1, ch. 96-237.
Note.-Former ss. 64.11-64.14.
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Select Year:
The 2012 Florida Statutes
Title XLVI
CRIMES
Chapter 823
PUBLIC NUISANCES
View Entire Chapter
823.14
Florida Right to Farm Act.(1) SHORT TITLE.-This section shall be known and may be cited as the "Florida Right to Farm Act."
(2) LEGISLATIVE FINDINGS AND PURPOSE.-The Legislature finds that agricultural production is a major
contributor to the economy of the state; that agricultural lands constitute unique and irreplaceable resources
of statewide importance; that the continuation of agricultural activities preserves the landscape and
environmental resources of the state, contributes to the increase of tourism, and furthers the economic selfsufficiency of the people of the state; and that the encouragement, development, improvement, and
preservation of agriculture will result in a general benefit to the health and welfare of the people of the state.
The Legislature further finds that agricultural activities conducted on farm land in urbanizing areas are
potentially subject to lawsuits based on the theory of nuisance and that these suits encourage and even force
the premature removal of the farm land from agricultural use. It is the purpose of this act to protect
reasonable agricultural activities conducted on farm land from nuisance suits.
(3) DEFINITIONS.-As used in this section:
(a) "Farm" means the land, buildings, support facilities, machinery, and other appurtenances used in the
production of farm or aquaculture products.
(b) "Farm operation" means all conditions or activities by the owner, lessee, agent, independent
contractor, and supplier which occur on a farm in connection with the production of farm, honeybee, or
apiculture products 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;
ground or aerial seeding and spraying; the placement and operation of an apiary; the application of chemical
fertilizers, conditioners, insecticides, pesticides, and herbicides; and the employment and use of labor.
(c) "Farm product" means any plant, as defined in s. 581.011, or animal or insect useful to humans and
includes, but is not limited to, any product derived therefrom.
(d) "Established date of operation" means the date the farm operation commenced. If the farm operation
is subsequently expanded within the original boundaries of the farm land, the established date of operation of
the expansion shall also be considered as the 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 operation. The expanded operation shall not
divest the farm operation of a previous established date of operation.
(4) FARM OPERATION NOT TO BE OR BECOME A NUISANCE.(a) No farm operation which has been in operation for 1 year or more since its established date of
operation and which was not a nuisance at the time of its established date of operation shall be a public or
private nuisance if the farm operation conforms to generally accepted agricultural and management practices,
except that the following conditions shall constitute evidence of a nuisance:
1. The presence of untreated or improperly treated human waste, garbage, offal, dead animals,
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dangerous waste materials, or gases which are harmful to human or animal life.
2. The presence of improperly built or improperly maintained septic tanks, water closets, or privies.
3. The keeping of diseased animals which are dangerous to human health, unless such animals are kept in
accordance with a current state or federal disease control program.
4. The presence of unsanitary places where animals are slaughtered, which may give rise to diseases
which are harmful to human or animal life.
(b) No farm operation shall become a public or private nuisance as a result of a change in ownership, a
change in the type of farm product being produced, a change in conditions in or around the locality of the
farm, or a change brought about to comply with Best Management Practices adopted by local, state, or federal
agencies if such farm has been in operation for 1 year or more since its established date of operation and if it
was not a nuisance at the time of its established date of operation.
(5)
WHEN EXPANSION OF OPERATION NOT PERMITTED.-This act shall not be construed to permit an
existing farm operation to change to a more excessive farm operation with regard to noise, odor, dust, or
fumes where the existing farm operation is adjacent to an established homestead or business on March 15,
1982.
(6) LIMITATION ON DUPLICATION OF GOVERNMENT REGULATION.-It is the intent of the Legislature to
eliminate duplication of regulatory authority over farm operations as expressed in this subsection. Except as
otherwise provided for in this section and s. 487.051(2), and notwithstanding any other provision of law, a
local government may not adopt any ordinance, regulation, rule, or policy to prohibit, restrict, regulate, or
otherwise limit an activity of a bona fide farm operation on land classified as agricultural land pursuant to s.
193.461, where such activity is regulated through implemented best management practices or interim
measures developed by the Department of Environmental Protection, the Department of Agriculture and
Consumer
042
Services, or water management districts and adopted under chapter 120 as part of a statewide or
regional program. When an activity of a farm operation takes place within a wellfield protection area as
defined in any wellfield protection ordinance adopted by a local government, and the adopted best
management practice or interim measure does not specifically address wellfield protection, a local
government may regulate that activity pursuant to such ordinance. This subsection does not limit the powers
and duties provided for in s. 373.4592 or limit the powers and duties of any local government to address an
emergency as provided for in chapter 252.
History.-s. 1, ch. 79-61; ss. 1, 2, ch. 82-24; s. 9, ch. 87-367; s. 75, ch. 93-206; s. 1279, ch. 97-102; s. 25, ch. 99-391; s. 39,
ch. 2000-308; s. 13, ch. 2012-83.
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IN THE CIRCUIT COURT OF THE
17 f" JUDICIAL CIRCUIT, IN AND
FOR BROWARD COUNTY,
FLORIDA
CASE NO.: 10-048282 (18)
GRANT EINHORN and SANDRA EINHORN,
as husband and wife
Plaintiffs,
vs.
STEVEN KOHN AND RENEE KOHN
Defendants
/
MOTION TO DISMISS NUISANCE SUIT UNDER FLORIDA'S RIGHT-TO-FARM
ACT
COMES NOW the defendants in this cause, STEVEN AND RENEE KOHN, through
their undersigned counsel, and move the Court to dismiss a nuisance suit under Florida Statute §
823.14.
The Einhorns ("Plaintiffs") filed a nuisance complaint against the Kohns ("Defendants")
on December 22, 2010. Defendant's farm operation is immune to the instant nuisance suit under
F.S. 823.14.
Florida's Right-to-Farm-Act provides Defendant with protection from the instant nuisance suit
filed against him. Under applicable Florida Law, the nuisance suit must be dismissed. Florida's
Right-to-Farm-Act was created to protect farming activities and further the economic selfsufficiency of the people of the state.
(2) Legislative findings and purpose.--The Legislature finds that
agricultural production is a major contributor to the economy of the state;
that agricultural lands constitute unique and irreplaceable resources of
statewide importance; that the continuation of agricultural activities
preserves the landscape and environmental resources of the state,
contributes to the increase of tourism, and fùrthers the economic selfsuf]ìciency ofthe people ofthe state; (Emphasis Added)
Fla. Stat. § 823.14.
Defendants are furthering the goals of the State of Florida by being self-sufficient; a
purpose for which this State's Legislature enacted the Right-to-Farm Act. Defendant eats the
eggs from his chickens, which reduces his costs of living by being more self-sufficient.
Consistent with the purpose of the Right-to-Farm Act, Defendant's farm operation must
be protected from the instant nuisance suit filed against them. Florida Statute § 823.14, in
relevant part, states:
(4) Farm operation not to be or become a nuisance.-(a) No farm operation which has been in operation for 1 year or more
since its established date of operation and which was not a nuisance at
the time of its established date of operation shall be a public or private
nuisance if the farm operation conforms to generally accepted
agricultural and management practices. . .
Defendants started their farm operation upon purchasing their property in September of2008 and
Defendant's farm operation was not an alleged nuisance until December 22, 2010. Therefore,
Defendant's farm has been in existence for over a year. The Defendant's farm operation also
conforms to generally accepted agricultural and management practices in addition to being in
operation for over a year. Providing a coup for the chickens and using the chickens to make eggs
is a generally accepted agricultural and management practice. See Pasco County v. Tampa Farm
Service, Inc., 573 So. 2d 909 (Fla. 2d DCA 1990)(Mere housing of chickens not subject of
litigation because it is a generally accepted agricultural and management practice).
The definition of a farm operation according to the statute is as follows:
"Farm operation" means all conditions or activities by the owner,
lessee, agent, independent contractor, and supplier which occur on
a farm in connection with the production of farm products
F.S. § 823.14(3).
Defendants own chickens which lay eggs. Defendants use land for farming on a farm as defined
by the statute as any land used for the production of farm products. Farm products are defined in
the statute as an "animal useful to humans and includes, but is not limited to, any product derived
therefrom." F.S. § 823.14(3). Defendant's chickens are an animal useful to humans, and the
product derived from them, eggs, also is useful to humans.
WHER.EFORE, under the plain language of this statute, Defendant's property falls into a
farm operation that is protected from nuisance suits because it has been in operation for over 1
year, is a farm operation that produces farm products, and protecting Defendant's farm operation
from the instant nuisance suit is consistent with the State Legislature's intent to promote self-
sufficiency among the people of the State of Florida, the instant nuisance action ought to be
dismissed.
Respectfully Submitted,
David Low, Esq.
I HEREBY CERTIFY that a true copy of the foregoing was mailed this ____ day of July,
2011 to Keith Silverstein 1177 Kane Concourse Suite 230, Bay Harbor Islands, Florida 33154.
DAVID LOW, ESQ.
Attorney for Defendants
28 West Flagler Street, 10th Floor
Miami, Florida 33130
Phone: (305) 728-1931
Fax: (305) 675-2685
By:
DAVID LOW, ESQ.
Florida Bar No.: 67957
IN THE CIRCUfT COURT OF THE 17*
JUDICIAL CIRCUlT, IN AND FOR
BROWARD COUNTY, FLORIDA.
GRANT EINHORN AND SANDRA EINHORN, CASE #10-048282 (18)
As husband and wife,
Plaintiffs,
Vs
STEVEN KOHN AND RENEE KOHN,
Defendants.
ORDER
Which came first- the chicken or the egg? The Kohns argue that the animosity came first
and then the complaints about the chickens. The Einhoms say it was the chickens that started the
problems. Either way, it seems that the animosity between the two neighbors has grown much
larger than the chicken issue. This court, however, only rules on the issue ofthe chickens (ducks
and goats).
On August 3rd and 4°', this Court held a hearing on the Einhorn's Motion for Injunctive
Relie£ At the hearing, the Court heard and considered the testimony ofPlaintiffs Sandra and
Grant Einhorn, Defendant Steven Kohn, Sue Shipman, a neighbor, Irish Gardiner, a Hollywood
Code Enforcement officer, Lenora Chucla, the President ofthe Emerald Hills Homeowners
Association and Lee Amalafia, another neighbor. The Court also considered the exhibits
introduced at trial including the Plaintiff's 4 hours ofvideo recording.
The Comt makes the followings findings of facts.
The Einhorns and the Kohns live next door to each other in Emerald Hills, a subdivision of
Hollywood. The Kohns have between 10-20 chickens and several ducks in their backyard. The
Kohns have also had goats in the past but not at present and have agreed not to have goats in the
future.
The Kohns keep the chickens and ducks as pets for their children. The family also uses the
bird droppings as fertilizer for their vegetation and also eat the eggs the chickens pmduce. Steven
Kohn testified that his chickens and ducks are not loud enough to bother anyone and that he
would never keep animals that he thought would disturb his neighbors.
Meanwhile, both the Einhorns and the Kohns have accused each other ofengaging in quite
disturbing and antagonistic behavior towards each other, the details of which are not the subjcet
of this case, but which the court heard as it would pertain to the credibility of the Einkoms and
the Kohns.
Even before the Einhoms moved into the house next to the Kohns, the President ofthe
Emerald Hills Homeowners Association received numerous calls from Emerald Hills residents
coMPlaining about the chickens being kept at the Kohn residence. The Hollywood Code
Enforcement officer first became aware ofthe Kohns' chickens when he responded to a
complaint from the Kohns regarding a neighbor's dog trying to enter the Kohns' backyard. The
Code officer at that time notified the Kohns that their chickens violated Hollywood ordinance
section 92.02. The Kohns refused to remove the chickens, arguing that possessing chickens is
not a violation. Eventually, the City ofHollywood filed a lawsuit in county court. A special
magistrate had a hearing at which time both sides presented testimony and other evidence. The
speed magistrate found that the chickens were a violation ofthe ordinance. The county court
upheld the magistrate's ruling and entered that the Kohns be fined $ 250.00 for every day that
they remam m violation ofthe ordinance. The county court's miing was upheld by the appellate
courts.
While the clucking ofthe chickens and quacking of the ducks is intermittent, it is still
often enough and loud enough to wake up the neighbors on either side ofthe Kohn house and to
disturb their quiet enjoyment oftheir respective backyards and homes. The Court gives great
weight to Mrs. Shipman's testimony. Mrs. Shipman, who lives next to the Kohns, testified that
the chickens and ducks have disturbed her and her husband's enjoyment of their home. She
testified that she purchased heavy drapes to try to minimize the noise from the chickens and
ducks. She built an extra fence within her own backyard so that when the chickens would
penodicallycome into her yard, her dogs would not be able to eat them. She said that when the
chicken coop was on the side ofthe Kohn house closest to her house, the chickens would disturb
her in the morning. Now that the coop was moved to the other side ofthe Kohn house, the
chickens aren't as loud in the moming, bur they still disturb her in the evening. The neighbor
who lives across the street from the Kohns testified in deposition that he can hear the ducks and
chickens firom his house across the street, but that the noise doesn't bother him.
The Court makes the following findings oflaw:
A pennanent injunction is proper when petitioner establishes "a clear legal right, an
inadequate remedy at law and that irreparable harm will arise absent injunctive relief."
minium Association. Inc. v Hampton, 40 So.3d 784 (4* DCA 2010)
quoting A E Brown & Co. v. McCutchen, 819 So.2d 977, 979(4* DCA 2002) Although the
Kohns have been found in violation of a Hollywood ordinance, this Court does not rely on that
fact. The Florida Supreme Court has said that "to constitute a thing a legal nuisance, it must be
so in fact, regardless of a declaration of an ordinance on the subject." Enowles v. Ccatral
Allapattae Properties. 145 Fla. 123, 198 So. 819 (Fla. 1941)
Thus, the Court must determine whether a clear legal right has been violated irrespective of
whether an ordinance has been violated. The Court sympathizes with the Kohns' desire to have
chickens, ducks and goats and also appreciates the benefits ofthe animals to the Kohn family.
However, the Court does find that a clear legal right has been violated. 'An owner or occupant of
property must use it in a way that will not be a nuisance to other owners and occupants in the
same community. Anything which annoys or disturbs one in the free use, possession, or
enjoyrnent ofhis property or which renders its ordinary use or occupation physically
uncomfortable may become a nuisance and may be restrained. "Knowles, 145 Fla. at 130
quoting Mcreer v. Kevaton, 121 Fla. 87, 163 So. 411, 413 (Fla.1935)
The Kohns' keeping ofchickens, ducks and/or goats violates their neighbors' right to enjoy
heir own respective homes and backyards. Neighbors shouldn't have to worry about chickens
coming into their yards. Neighbors shouldn't have to hang heavy drapes in their houses or get
hurricane proofwindowsjust to keep out the noise of a neighbor's animals. Neighbors shouldn't
c okto build an extra fence within their yard to ensure that their dogs don't eat their neighbor's
042
Case#10-048282 "18"
Defendant highlighted at the hearing that the Einhorns knew of the chickens before they ever
bought the house. This point is ofno legal consequence in this context. See Knowles.
The Court finds that the above described harms are irreparable and that there is no other
adequate remedy at law other than the court granting a permanent irdunction to remedy the above
described harms. The Court also finds that this injunction serves the public interest. The Court
hereby enjoins the Defendants nom having any chickens, ducks or goats at their property located
at 3841 North 51'* Avenue, Hollywood, Florida. Defendants shall have 10 days from today's date
to comply with this Order.
DONE and ORDERED in chambers at Fort Lauderdale, Broward County, Florida this
day ofAugust, 2011.
MICHELE TOWBIN SINGER
CIRCUIT COURT JUDGE
DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DIsTRIcT
January Term 2013
STEVEN KOHN,
Appellant,
V.
GRANT EINHORN and SANDRA EINHORN, as husband and wife,
Appellees.
No. 4D11-3154
[February 20, 2013]
PER CURIAM.
Affirmed.
STEVENSON, CIKLIN, JJ., and MORGAN, DAVID C., Associate Judge, concur.
Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Michele Towbin Singer, Judge; L.T. Case No. 10-48282
18.
David Low, Miami, for appellant.
Keith D. Silverstein of Keith D. Silverstein, P.A., Bay Harbor Islands,
for appellees.
Not final until disposition of timely filed motion for rehearing.
IN THE DISTRICT COURT OF APPEAL OF FLORIDA
FOURTH DISTRICT
CASE NO. 4D11-3154
STEVEN and RENEE KOHN,
Appellant,
v.
GRANT and SANDRA EINHORN,
Appellee.
MOTION FOR REQUEST FOR WRITTEN
OPINION PURSUANT TO RULE 9.330(a)
FLORIDA RULES OF APPELLATE PROCEDURE
The Court entered a per curiam affirmance without opinion in this case on
February 20, 2013. Pursuant to Rule 9.330(a)undersigned counsel requests a written
opmion.
I express a belief, based upon a reasoned and studied professional judgment,
that a written opinion will provide a legitimate basis for supreme court review. That
is so because a written opinion of this Court that "expressly and directly conflicts
with decision of another district court of appeal or the supreme court on the same
question of law" is subject to discretionary review pursuant to Article V, section
3(b)(3) of the Florida Constitution.
Specifically, the Court's affirmance of the trial court's decision to enjoin the
Kohn's existing farm operation as a nuisance, directly conflicts with the premise and
spirit of the Second District's opinion in Pasco County v. Tampa Farm Services Inc.,
573 So. 2d 909 (Fla. 2d DCA 1990)(holding that legislature intended to protect
existing farmers from nuisance suits).
A written opinion explaining why Section 823 (Florida's Right to Farm Act)
is not violated when a trial court enjoins an existing farm operation which employs
universally accepted farming practices, would provide a basis for invoking
discretionary supreme court review. In sum, a written opinion would be most helpful
to both commercial and residential farmers throughout the Fourth District.
Respectfully submitted,
DAVID LOW, ESQ.
Florida Bar No. 67957
LAW OFFICES OF DAVID LOW
17840 West Dixie Highway
North Miami Beach, Fl 33160
[email protected]
Ph: (305) 728-1931
Fax: (305)695-2685
By:
DAVID LOW
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing has been
furnished to counsel listed below, by E-mail and U.S. Mail this 28 day of February,
2013:
KEITH D. SILVERSTEIN
[email protected]
Keith D Silverstein P A
1177 Kane Concourse Ste 230
Bay Harbor Islands, Florida 331542027
DAVID LOW
3
IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT, 1525 PALM BEACH LAKES BLVD., WEST PA LM
BEACH, FL 33401
A pril 04, 2013
CASE NO.: 4D11-3154
LT. No.:
10-48282 18
STEVEN KOHN
v.
Appellant / Petitioner(s)
GRANT EINHORN, SANDRA EINHORN,
etc., et al
Appellee / Respondent(s)
BYORDEROFTHECOURT:
ORDERED that appellant's motion filed March 1, 2013, for request for written
opinion pursuant to Rule 9.330(a) is hereby denied. See Wilson v Palm Beach County,
62 So. 3d 1247, 1250 (Fla. 4* DCA 2011)
| HEREBY CERTIFY that the foregoing is a true copy of the original court order.
Served:
cc: David Low
Keith Silverstein
ct
blARIL'YN BEUTTENMULLER, clerk
Fourth District Court of Appeal
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PASCO COUNTY v. TAMPA FARM SERVICE, INC.
573 So.2d 909 (1990)
PASCO COUNTY, a Political Subdivision of the State of Florida, Appellant,
V.
TAMPA FARM SERVICE, INC., a Florida Corporation, Appellee.
No. 90-00624.
District Court of Appeal of Florida, Second District.
December 14, 1990.
Rehearing Denied February 6, 1991.
Karla A. Stetter, Chief Asst. County Atty., New Port Richey, for appellant.
Wallace B. Anderson, Jr. of Allen, Dell, Frank & Trinkle, Tampa, for appellee.
ALTENBERND, Judge.
Pasco County appeals a final judgment which enjoins its enforcement of waste disposal
ordinances against Tampa Farm Service, Inc. The trial court determined that the activities of Tampa
Farm were protected under the Florida Right to Farm Act, section 823.14, Florida Statutes (1987).
From a review of the record, we believe that the trial court misinterpreted this statutory right to farm
and applied an incorrect standard in determining that Tampa Farm's activities did not constitute a
"more excessive farm operation with regard to ... odor." Accordingly, we reverse the judgment and
remand for a new trial.
Tampa Farm is primarily involved in commercial egg and poultry production in Hillsborough
County. Since November 1977, the Tampa Farm facilities in Hillsborough County have maintained a
population of 1.5 to 2 million chickens. In addition to eggs and meat, the Tampa Farm operation
produces a great quantity of poultry manure, a by-product with less desirable and less marketable
characteristics.
Tampa Farm also owns approximately 849 acres of agricultural property located at three
different locations in unincorporated Pasco County. Since 1977, Tampa Farm has used this property
for hay production. Tampa Farm has been able to dispose of its poultry manure as soil enrichment in
these hayfields. From 1977 to 1983, Tampa Farms used an agricultural method which allowed the
manure to be spread in a dry and relatively odor-free state.
In 1983, Tampa Farm began using a different type of chicken housing which led to more
frequent collection of manure. Consequently, Tampa Farm changed from a dry to wet manure
distribution process. Tampa Farm began spraying the hayfields with many truckloads of liquid
manure on a weekly, if not daily, basis. It is undisputed that the change from dry manure to wet
manure resulted in a substantial increase in the locale's odor. Indeed, to avoid extensive testimony,
the parties stipulated that:
042
Wet chicken manure, used as fertilizer, is more odious than dry chicken manure, and the odor from the
chicken manure, used as fertilizer, has increased since March of 1982.
Although the trial judge did not personally experience this problem, he did receive testimony from
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people who lived in the area for many years. They all testified that the problem with odor and flies
greatly increased upon the change in fertilizer.
In August and September of 1987, prompted by the increase in odor emanating from the Pasco
property, Pasco County cited Tampa Farm for violations of the County's waste and garbage disposal
ordinances. Tampa Farm filed the action below
[ 573 So.2d 911 ]
requesting a declaratory judgment and an injunction against the enforcement of the ordinances in
Pasco County. Tampa Farm maintained that its operations in both Hillsborough and Pasco Counties
were protected by the Florida Right to Farm Act. The trial court agreed and entered a final judgment
restraining Pasco County from enforcing its environmental regulations.
In order to understand the error which occurred in the trial court, it is important to analyze three
subsections of the Florida Right to Farm Act separately. Section 823.14(4)(a) protects a farm which
has been established for at least one year from being declared a public or private nuisance "if the
farm operation conforms to generally accepted agricultural and management practices."1
Subsection (4)(a) contains four exceptions which are not material to this case; however, it is
noteworthy that the four exceptions involve activities which would rarely, if ever, be regarded as
acceptable agricultural practices.
Section 823.14(4)(b) protects an established farm from being declared a nuisance merely
because of: 1) a change in ownership, 2) a change in the type of farm product being produced, or 3)
a change in the conditions in or around the locality of the established farm. Thus, Tampa Farms is
free to sell the farm, grow strawberries, or allow urban development in the neighborhood without fear
of a lawsuit to abate its activities.
Subsection (5) of section 823.14 is the critical subsection in this case.2 Neither the parties, the
trial court, nor this court are aided by any precedent interpreting the statutory language. Under this
subsection, any "change to a more excessive farm operation with regard to noise, odor, dust, or
fumes," is not afforded the statutory protection if the farm was adjacent to an established homestead
or business on March 15, 1982. It is undisputed that the hayfields in Pasco County were adjacent to
homesteads and businesses in 1982. The Act broadly defines "farm operation."A Because the
generation of odors falls within that definition, it is clear that the change from dry fertilizer to more
odiferous wet fertilizer is a change in farm operation. Hence, the critical question is whether it is a
"more excessive" operation.
Tampa Farms argued in the trial court and in this court that so long as it continues to raise
chickens and hay, and does not increase the size of the operation, it can make virtually any change
in specific farm practices with impunity, if the new practice is a generally accepted agricultural
practice.
[ 573 So.2d 912 ]
Thus, Tampa Farms maintains that it may use any agriculturally acceptable fertilizer, herbicide, or
other procedure which is developed in the future to produce hay and chickens - no matter how
disruptive to its neighbors - because the methods it used in 1982 were legal. Tampa Farms
essentially convinced the trial court that a change was not excessive under section 823.14(5) if it
was a generally accepted agricultural practice under section 823.14(4)(a). The statutory language
and the goals of the Act do not support this interpretation. Even if a practice is agriculturally
acceptable, it may cause unreasonable degradation for the established neighborhood. This seems
to be the very problem which the exception in section 823.14(5) was designed to solve.
Statutes creating a "right to farm" are of recent origin. Generally, these statutes are intended to
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preserve productive land for agricultural purposes and to protect the established farmer from the
demands of "sprawling urban development." Hanna, "Right to Farm" Statutes - The Newest Too/in
Agricultural Land Preservation, 10 Fla.St.U.L.Rev. 415 (1982). The goals and purposes of such
statutes
042
are meritorious. The legislature certainly has valid reasons to protect established farmers
from the expense and harassment of lawsuits aimed at declaring this vital industry to be a nuisance.
On the other hand, the scientific technology of any industry, including agriculture, may undergo
changes which are acceptable within the industry and yet very detrimental to the industry's
neighbors. We do not interpret the Florida Right to Farm Act as an unfettered license for farmers to
alter the environment of their locale merely because the practices which they used in 1982 were
acceptable at that time. Technologies which are implemented by farmers after 1982 are subject to
litigation raising claims in nuisance and to reasonable governmental regulationsA It may be that
neither the court nor the local government can require the farm owner, under a nuisance theory, to
comply with requirements more stringent than those existing in 1982, but the govemment has the
power to enforce those historic levels.
In light of the purposes of the Act, we do not interpret a "more excessive farm operation" to
include minor odor changes or minimal degradation of the local environment. The Act seems to
afford farmers protection for these minor changes but does not afford protection for more
"excessive" changes. Thus, a court or a local government is free to regulate changes in agricultural
practices only if those changes involve significant or substantial degradation in the locale. We admit
this line is difficult to define and would observe that the legislature has given the courts little
assistance in this process. In this case, however, the evidence strongly supports a finding of a
substantial change in the odor of the locale.
Thus, we remand this case to the trial court for a new trial to determine whether the change in
fertilizer has resulted in a substantial degradation of the locale that falls within section 823.14(5) and,
if so, to determine whether the county's regulations are valid under traditional nuisance rules to the
extent that they regulate degradation from the 1982 threshold.
Reversed and remanded.
RYDER, A.C.J., and THREADGlLL J concur.
Footnotes
1. Section 823.14(4)(a), Florida Statutes (1987), states:
No farm operation w hich has been in operation for 1 year or more since its established date of operation and w hich
w as not a nuisance at the time of its established date of operation shall be a public or private nuisance if the farm
operation conforms to generally accepted agricultural and rnanagement practices, except that the following
conditions shall constitute evidence of a nuisance:
1. The presence of untreated or improperly treated human w aste, garbage, offal, dead animals, dangerous w aste
materials, or gases w hich are harmful to human or animal life.
2. The presence of improperly built or inproperly maintained septic tanks, w ater closets, or privies.
3. The keeping of diseased animals w hich are dangerous to human health, unless such animals are kept in
accordance w ith a current state or federal disease control program,
4. The presence of unsanitary places w here animals are slaughtered, w hich may give rise to diseases w hich are
harmful to human or animal life.
Back to Reference
2. Section 823.14(5), Florida Statutes (1987), states:
WHEN EXPANslON OF OPERATlON NOT PERlWl-TED
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This act shall not be construed to perrnit an existing farm operation to change to a more excessive farm operation
with regard to noise, odor, dust, or fumes where the existing farm operation is adjacent to an established
homestead or business on March 15, 1982.
Back to Reference
3. Section 823.14(3)(b), Florida Statutes (1987), defines "farm operation" as:
[A]Il conditions or activities by the ow ner, lessee, agent, independent contractor, and supplier w hich occur on a
farm in connection w ith the production of farm products 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; ground or aerial seeding and spraying; the application of chernical fertilizers, conditioners,
insecticides, pesticides, and herbicides; and the ernployment and use of labor.
Back to Reference
4. It should be noted that Pasco County concedes that its regulations are based upon a nuisance theory. Counties
frequently have the power to abate or prohibit activities which are nuisances per se or nuisances in fact. Carter v. Town
of Palm Beach,237 So.2d 130 (Fla. 1970); City of Miami Beach v. Texas Co., 141 Fla. 616, 194 So. 368 (1940); see
generally 12 Fla.Jur.2d Counties and Municipal Corporations §§ 207-08 (1979). It is possible, however, that a county
may also have the authority to regulate an activity to promote the public health, safety, and welfare, even if the activity is
not so obno>dous as to constitute a nuisance. The power given to legislative and executive bodies to regulate
environmental problems may be greater than the power given to the judicial branch to abate public and private
nuisances. Since the County has not presented this issue in this appeal, it is a question which can await resolution.
Back to Reference
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WILSON v. PALM BEACH COUNTY
62 So.3d 1247 (2011)
Richard WILSON, Plant Explorers, LLC, and Excalibur Fruit Trees, LLC, Appellants,
V.
PALM BEACH COUNTY, Appellee.
No. 4D10-58.
District Court of Appeal of Florida, Fourth District.
June 15, 2011.
Richard A. Kupfer of Richard A. Kupfer, P.A., Delray Beach, and John F. Romano, Lake Worth,
for appellants.
Dawn S. Wynn, West Palm Beach, for appellee.
WARNER, J.
A landowner appeals a summary judgment in favor of Palm Beach County declaring that the
Right to Farm Act did not preempt the County's enforcement of ordinances enacted prior to its
passage. The court also determined that the special permitting requirements of county ordinances
042
were not covered by the Act, because they did not limit farming operations. Finally, the court
determined that the County enacted its development code pursuant to its home rule powers as
much as Chapter 163, and therefore it had the power to regulate agricultural uses pursuant to its
home rule powers even though Chapter 163 excluded agricultural uses from its terms. Because the
Right to Farm Act does not prohibit enforcement of ordinances in existence at the time of the
adoption of the Act, we affirm in part the declaratory judgment. We reverse, however, as to the
court's conclusion that the special permit conditions and setbacks did not limit farming operations,
as genuine issues of material fact remain. We affirm the determination that the county ordinances
are not preempted by the exclusion of agricultural uses from section 163.3164, Florida Statutes.
Plaintiffs/appellants, Richard Wilson, and his two business entities, Plant Explorers, LLC, and
Excalibur Fruit Trees, LLC, own and operate a nursery on several parcels of land located in
unincorporated Palm Beach County. The land is located in an agricultural-residential zoning district.
Wilson has owned most of the land for over twenty years, but he purchased one of the parcels in
2005. Wilson has obtained a Grower's Certificate and a State Nursery Inspection License for his
operations.
In September 2007, a neighbor of the nursery complained to Palm Beach County about burning
activities on Wilson's property. Due to the complaint, an agent of the County conducted a site visit to
the property. Although the County agent found no violation in connection with the burning, the County
issued a Notice of Violation, indicating that Wilson was in violation of the Unified Land Development
Code ("ULDC") because he was "operating a wholesale or retail nursery without the proper zoning
approval" and was maintaining landscaping materials, equipment, and vegetation debris without
042
zoning approval. The County threatened to shut his business down unless he complied. Wilson
advised the County that he would comply with its demands "under protest." Throughout the dispute,
Wilson maintained that his activities were protected by the Florida Right to Farm Act.
In July 2008, Plant Explorers, LLC, filed a special permit application for the 2005 parcel. The
County issued a "Special Permit" which allowed the operation of the business on the 2005 parcel if
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certain conditions were met. The conditions required the business to comply with specific portions of
the ULDC, including, among other provisions: 1) mandatory set-back provisions for outdoor storage
areas, structures,
[62 so.3d 1249 ]
and plants in containers; 2) a prohibition of the operation of commercial vehicles from 7:00 p.m. to
6:00 a.m.; and 3) a requirement of a buffer adjacent to all parking, loading, and internal roads.1
However, no general condition in the Special Permit required the nursery to comply with the ULDC
as a whole.
In response to the County's demand of the permits and conditions, the plaintiffs filed a verified
complaint against the County seeking declaratory and injunctive relief on the grounds that: 1) the
special permit conditions violated Florida's Right to Farm Act, and 2) the plaintiffs' activities were
farming operations which did not constitute "development" for the purposes of the ULDC and its
enabling legislation. The County answered, denying that Wilson was a "farmer" and denying that the
plaintiffs were engaged in farming operations.
The County filed a motion for summary judgment, arguing that: 1) the Right to Farm Act restricts
only new ordinances, not the enforcement of pre-existing ordinances; 2) the County's zoning permit
regulations regarding nurseries are not governed by the Right to Farm Act because they are not
intended to limit farming operations; and 3) restrictions on the term "development" under Chapters
163 and 380, Florida Statutes, did not prohibit the County's ordinances, which were authorized under
more general grants of constitutional and statutory authority.
The trial court held a hearing on the summary judgment motion and ultimately entered final
summary judgment in favor of the County. The trial court first concluded that the Right to Farm Act's
prohibition
042
against the adoption of any local ordinances that restrict farm activity on agricultural land
would not affect the enforcement of pre-existing ordinances, but would only "limit adoption of new
ordinances from the date the Legislature first prohibited such adoption, which occurred on June 16,
2000." The trial court noted that the requirement for wholesale nurseries to obtain a special permit
was modified in 2002 and, therefore, the current iteration of the requirement did not pre-date the
Right to Farm Act's prohibition against the adoption of new ordinances. However, the court
concluded that neither the procedural requirement of obtaining a special permit nor the setback and
other permit conditions were regulations "to prohibit, restrict, regulate, or otherwise limit an activity of
a bona fide farm operation" in contravention of the statute. Finally, the court concluded that Palm
Beach County had the authority as a charter county to enforce the provisions of its ULDC on farming
activities, notwithstanding the limited definition of "development" in Chapter 163, Florida Statutes.
Accordingly, the trial court entered final summary judgment in the County's favor, prompting this
appeal.
Section 823.14(6), Florida Statutes, provides in relevant part:
It is the intent of the Legislature to eliminate duplication of regulatory authority over farm operations as
expressed
[62 So.3d 1250 ]
in this subsection. Except as otherwise provided for in this section and s. 487.051(2), and notwithstanding
any other provision of law, a local government may not adopt any ordinance, regulation, rule, or policy to
prohibit, restrict, regulate, or otherwise limit an activity of a bona fide farm operation on land classified as
agricultural land pursuant to s. 193.461, where such activity is regulated through implemented best
management practices or interim measures developed by the Department of Environmental Protection, the
042
Department of Agriculture and Consumer Services, or water management districts and adopted under
chapter 120 as part of a statewide or regional program.
This subsection of the Right to Farm Act became effective on June 16, 2000. See Laws of Fla.,
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Ch. 2000-308, § 39.
Courts must determine legislative intent primarily from the language of the statute. See Go//
Channel
042
v. Jenkins, 752 So.2d 561, 564 (Fla.2000). "When a statute is clear and unambiguous,
courts will not look behind the statute's plain language for legislative intent or resort to rules of
statutory construction to ascertain intent." Lee Cnty. Elec. Co-op., /nc. v. Jacobs, 820 So.2d 297,
303 (Fla.2002). The statute's plain and ordinary meaning must control, unless this leads to an
unreasonable result or a result clearly contrary to legislative intent. Daniels v. Fla. Dep't of Health,
898 So.2d 61, 64 (Fla.2005).
Applying those principles, in J-// /nvestments, /nc. v. Leon County, 908 So.2d 1140 (Fla. 1st
DCA 2005), the First District considered identical language in section 163.3162, the Agricultural
Lands and Practices Act (ALPA), and held that the statute's prohibition on counties adopting
ordinances relating to agriculture did not prevent the enforcement of provisions already in place. The
court explained:
The plain, unambiguous terms of section 163.3162(4), Florida Statutes, prevent counties from adopting
ordinances relating to agriculture. The statute does not address the enforcement of provisions already in
place. If the legislature intended to include the term "enforce" in the statute, it clearly could have done so.
See, e.g., § 403.7603, Fla. Stat. (2004) ("... no county or municipality shall adopt or enforce regulations that
discriminate against privately owned solid waste management facilities...") (emphasis added); §
163.3174(6), Fla. Stat. (2004) ("If a joint planning entity is in existence on the effective date of this act which
authorizes the governing bodies to adopt and enforce a land use plan effective throughout the joint
planning area ....") (emphasis added). Thus, since the legislature did not include the word "enforce" in
section 163.3162(4), Florida Statutes, we cannot assume that they intended to preempt all existing county
regulations.
/d. at 1141 (citation omitted). Because the operative language of the ALPA is identical to the
language
042
in the Right to Farm Act, the same analysis applies, and the Right to Farm Act does not
prohibit the enforcement of county ordinances enacted prior to the Act's effective date. Palm Beach
County's ULDC was enacted in 1989. The Right to Farm Act provisions restricting local government
from adopting ordinances restricting farming activities did not become effective until June 16, 2000.
Furthermore, the set-back provisions, the non-conforming use requirements, and the zoning
provisions for wholesale nurseries have existed within the ULDC since before June 16, 2000.
Appellants claim J-//'s analysis is inconsistent with the first sentence of the statute declaring the
legislative intent to eliminate duplication of regulatory authority
[62 So.3d 1251 ]
over farming operations. We disagree. The first sentence states: "It is the intent of the Legislature to
eliminate duplication of regulatory authority over farm operations as expressed in this subsection" §
823.14(6), Fla. Stat. (emphasis supplied). What is expressed in the subsection is a prohibition on the
adoption of further regulations. It does not prevent the enforcement of currently existing regulations.
The trial court correctly declared that enforcement of the County's ordinances enacted prior to 2000
is not prohibited by the Right to Farm Act.
One of the ordinances that the County sought to enforce, however, was adopted after the
enactment of the Right to Farm Act. The ordinance pertaining to special permits for nurseries of less
than five acres was enacted in 2002. Thus, appellants argue that the trial court erred in concluding
that only certain types of zoning regulations are preempted, and it also erred in concluding that the
zoning regulations on which the County's special permit was conditioned do not impact the
042
appellants' farming operations. The County maintains that its requirement that appellants apply for
and receive a special permit is merely a procedural requirement, although the permit imposes
setbacks and other conditions. Whether these special permit conditions were all requirements in the
code prior to the adoption of the Right to Farm Act is also unclear in the record.
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The trial court relied on two Attorney General opinions in concluding that the enforcement of
setback requirements would not impact farming operations. In 2001, the Florida Attorney General's
Office issued an opinion regarding whether a county may require a zoning compliance permit under
its land development regulations for nonresidential farm buildings. See Op. Att'y Gen. Fla.2001-71
(2001). The opinion recognized that the Right to Farm Act prohibited local governments from
adopting ordinances interfering with farm operations. The Attorney General concluded: "It would
appear that a setback requirement would not necessarily limit a farm's operation and would,
therefore, apply to such construction." (emphasis added). No facts in the opinion support this
conclusion.
In 2009, the Florida Attorney General reaffirmed the opinion that a county has the authority to
enforce its zoning regulations regarding the construction of a building on land classified as
agricultural, if those regulations do not limit the operational activity of the bona fide farm operation.
See Op. Att'y Gen. Fla.2009-26 (2009). However, in that case, the issue presented was the
application of setback requirements to a building which could not be classified as a farm building but
was more of a guest house on the property.
Nothing in the record supports the trial court's conclusion that the conditions of this permit,
including the setback requirements, would not interfere with farming operations. Other conditions of
the permit require buffers adjacent to all parking, loading, and internal roads. Some conditions limit
the hours of operation of large commercial vehicles. We have no way of knowing how these
requirements impact the wholesale nursery operations on the property. We do not think it is
authorized or appropriate for us to take the Attorney General's statement that it appears that setback
requirements would not impact farming operations as an adjudicated fact. While the actual
application for a permit may be a procedural step which does not limit farming operations, the same
cannot be said for the conditions on the permit which may require substantial modification of
operations.
[62 So.3d 1252 ]
Summary judgment is appropriate where there is no genuine issue as to any material fact and the
moving party is entitled to judgment as a matter of law. Fla. R. Civ. P. 1.510(c). "[T]he burden is
upon the party moving for summary judgment to show conclusively the complete absence of any
genuine issue of material fact." Albe/o v. S. Be//, 682 So.2d 1126, 1129 (Fla. 4th DCA 1996). The
record does not show that there are no genuine issues of material fact remaining. The County did
not carry its burden, because it offered no proof that its permit conditions did not impact farming
operations.
Finally, we affirm the trial court's conclusion that Chapter 163's definition of development, which
excludes the use of land for agricultural purposes, does not preempt all local government regulation
of agricultural uses. Section 163.3164(6) defines "development" by referencing section 380.04,
which defines the term as "the carrying out of any building activity or mining operation, the making of
any material change in the use or appearance of any structure or land, or the dividing of land into
three or more parcels." § 380.04(1), Fla. Stat. However, section 380.04 also excludes various
operations which do not involve "development" as defined in the statute, including "[t]he use of any
land for the purpose of growing plants, crops, trees, and other agricultural or forestry products;
raising livestock; or for other agricultural purposes."§ 380.04(3)(e), Fla. Stat. If agricultural uses are
excluded, then the terms of section 163.3164, et seq., would not apply to them, because they do not
constitute "development." Other statutes may restrict agricultural land uses. See, e.g., § 823.14(6),
Fla. Stat. (The Right to Farm Act); § 604.50, Fla. Stat. (nonresidential farm buildings are exempt
from
042
the Florida Building Code and any county or municipal building code); § 163.3162, Fla. Stat.
(Agricultural Lands and Practices Act). But agricultural use is not within the definition of development
and governed by Chapter 163.3164.
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In this case, the authority for the ULDC is not based exclusively on Chapter 163, but is also
based upon the constitutional home-rule powers as well as the general authority granted under
Chapter 125, Florida Statutes. The County has the authority pursuant to those grants of power to
regulate the lands within its county to the extent that the regulation does not conflict with other
statutes governing agricultural uses. Because the County has that authority, we agree with the trial
court that Chapter 163 does not preempt the regulation in this case.
Affirmed in part, reversed in part, and remanded.
STEVENSON and TAYLOR, JJ., concur.
Footnotes
1. The entire list of conditions set forth in the special permit is as follows: 1) provide proof that a viable wholesale
nursery had been established on the property within six months of the special permit issuance; 2) limit operation of
commercial vehicles over 1 ton or 10,000 pounds capacity from 7:00 p.m. to 6:00 a.m.; 3) maintain a 15 foot right-of-way
buffer adjacent to office, parking, load, internal roads, and other non-growing areas within 50 feet of a right-of-way; 4)
maintain a buffer along all property lines not screened by plant material; 5) maintain a 50 foot set-back for structures,
greenhouses and outdoor areas; 6) maintain a 15 foot set-back for container plants; and 7) maintain a set-back for
outdoor bulk storage of 50 feet or the district set-back, whichever is greater.
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Florida Supreme Court
500 South Duval Street
Tallahassee Florida 32399-1925
May 21, 2013
Notice to Clerk of the Florida Supreme Court
A case number has not yet been assigned to this, but I was told by phone that I could send this brief in
and it would be placed with my original notice of appeal papers so that it could be available to read right
away by the parties that review these matters first.
Thank you in advance for our kind consideration.
Steve Kohn
3841 N 51 Ave
Hollywood FL 33021
954-404-7358
kohn(Searthlink.net
Appealing case 4D11-3154 as a pro se
es
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