Department of Agriculture and Consumer Services v. Mid-Florida Growers, Inc.

• Decision Date: 21 January 1988
• Docket Number: MID-FLORIDA,No. 70524,70524
• Court: Florida Supreme Court
• Parties: DEPARTMENT OF AGRICULTURE AND CONSUMER SERVICES, Petitioner, v.GROWERS, INC. and Himrod & Himrod Citrus Nursery, Respondents.

Page 101

521 So.2d 101

DEPARTMENT OF AGRICULTURE AND CONSUMER SERVICES, Petitioner, v. MID-FLORIDA GROWERS, INC. and Himrod & Himrod Citrus Nursery, Respondents.

No. 70524.

Supreme Court of Florida.

Jan. 21, 1988.

Rehearing Denied April 1, 1988.

Frank A. Graham, Jr., Resident Atty., and Harry Lewis Michaels, Dept. of Agriculture and Consumer Services, Tallahassee, for petitioner.

M. Stephen Turner of Broad and Cassel, Tallahassee, for respondents.

EHRLICH, Justice.

We have for review State of Florida, Department of Agriculture and Consumer Services v. Mid-Florida Growers, Inc. and Himrod & Himrod Citrus Nursery, 505 So.2d 592 (Fla. 2d DCA 1987), in which the district court certified the following question as one of great public importance:

WHETHER THE STATE, PURSUANT TO ITS POLICE POWER, HAS THE CONSTITUTIONAL AUTHORITY TO DESTROY HEALTHY, BUT SUSPECT CITRUS PLANTS WITHOUT COMPENSATION?

Id. at 596. We have jurisdiction. Art. V, § 3(b)(4), Fla.Const. We answer the certified question in the negative and approve the decision of the district court below.

During 1984, respondents, Mid-Florida Growers, Inc. and Himrod & Himrod Citrus Nursery, operated citrus nurseries in Hardee County, Florida. In April 1984, they purchased citrus budwood from Ward's Nursery in Polk County. Himrod purchased 8,000 budeyes; Mid-Florida received between 8,500 to 9,000. On August 27, 1984, a form of citrus canker was detected at Ward's Nursery. On September 6, 1984, the Florida Department of Agriculture and Consumer Services (Department) obtained samples from respondents' nurseries to determine whether their stock was infected, and informed respondents on September 10, 1984 that the tests did not establish that any of their stock was infected by or infested with citrus canker. Despite the negative test results, the Department advised respondents on October 2, 1984, that their nursery stock must be burned and that quarantine was not an acceptable alternative. From October 7 to October 19, 1984, the Department burned 137,880 of Mid-Florida's and 143,594 of Himrod's trees and budwood. The emergency confirmatory orders designating respondents' nurseries as eradication areas and directing destruction of stock within 125 feet of budwood from Ward's Nursery were not issued until October 16, 1984.

Respondents filed an inverse condemnation suit seeking full and just compensation, contending that the Department's destruction of nursery stock which was not infected or diseased resulted in a taking for public purpose. The Department argued that the destruction occurred pursuant to regulatory and police power and did not constitute a taking. A trial was held on the liability issue alone. Although the trial judge noted that the Department's actions were within its police power, he found:

No competent evidence supports the states (sic) concern that the Plaintiffs' nursery stock was infected or diseased so as to justify destruction. The most that can be said for the Defendant is that the Plaintiffs' nursery stock was obtained from a single source where some form of citrus canker was detected. The Plaintiffs' careful methods of operation, and the fact that no citrus canker in any form was discovered in the Plaintiffs' nursery stock, leads to the legal conclusion that no citrus canker was present. It is the responsibility of the state to make reasonable efforts to ascertain the presence of infection or disease, under the circumstances of this case. Therefore, a taking has occurred in this instance and Plaintiffs are entitled to full and just compensation.

(Emphasis in original).

The district court, on appeal, noted that a valid exercise of the police power does not preclude an inverse condemnation suit and that whether a valid exercise of the police power results in a taking must be decided on the facts of each case. 505 So.2d at 594. The district court also determined that the trial court's order in the instant case was clearly supported by substantial, competent evidence. Accordingly, the district court affirmed the trial court's determination that the nursery owners must be compensated and held that "while the state validly exercised its police powers in destroying the citrus trees, a taking occurred when the healthy trees were destroyed." Id. at 595.

The Department contends that no taking occurred in the instant case because the trees were destroyed in order to prevent a public harm. We, however, agree with the district court's conclusion that destruction of the healthy trees benefited the entire citrus industry and, in turn, Florida's economy, thereby conferring a public benefit rather than preventing a public harm. Id. at 595. Although this factor alone may not be conclusive, we have previously recognized that if a regulation creates a public benefit it is more likely that there is a taking. See Graham v. Estuary Properties, Inc., 399 So.2d 1374, 1381 (Fla.), cert. denied sub nom. Taylor v. Graham, 454 U.S. 1083, 102 S.Ct. 640, 70 L.Ed.2d 618 (1981). Furthermore, we reject the Department's contention that the state's lack of a possessory or proprietary interest in the destroyed property precludes a finding that a taking occurred. A taking of private property for a public purpose which requires compensation may consist of an entirely negative act, such as destruction. See, e.g., Corneal v. State Plant Board, 95 So.2d 1 (Fla.1957) (destruction of healthy citrus trees required compensation). As noted by the United States Supreme Court:

In its primary meaning, the term 'taken' would seem to signify something more than destruction, for it might well be claimed that one does not take what he destroys. But the construction of the phrase has not been so narrow. The courts have held that the deprivation of the former owner rather than the accretion of a right or interest to the sovereign constitutes the taking. Governmental action short of acquisition of title or occupancy has been held, if its effects are so complete as to deprive the owner of all or most of his interest in the subject matter, to amount to a taking.

United States v. General Motors Corp., 323 U.S. 373, 378, 65 S.Ct. 357, 359-60, 89 L.Ed. 311 (1945) (footnote omitted).

The Department next urges that the certified question must be answered in the affirmative because the state, in destroying the trees, validly exercised its police power in conformance with applicable statutes and rules. Although we do not disagree with the Department's contention that the state's order was a valid exercise of its police power, it is a settled proposition that a regulation or statute may meet the standards necessary for exercise of the police power but still result in a taking. ¹ See Albrecht v. State, 444 So.2d 8 (Fla.1984). See also Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 425, 102 S.Ct. 3164, 3170, 73 L.Ed.2d 868 (1982). As recently stated by the United States Supreme Court, a basic understanding of "the [Fifth] Amendment makes clear that it is designed not to limit the governmental interference with property rights per se, but rather to secure compensation in the event of otherwise proper interference amounting to a taking." First English Evangelical Lutheran Church of Glendale v. County of Los Angeles, California, 482 U.S. 304, 107 S.Ct. 2378, 2386, 96 L.Ed.2d 250 (1987).

This principle is illustrated in State Plant Board v. Smith, 110 So.2d 401 (Fla.1959), a case involving circumstances similar to the present case. ² In State Plant Board, a statute provided for destruction of uninfested trees in order to prevent the spread of a citrus disease known as spreading decline. This Court noted that when the state, in the exercise of its police power, destroys decayed fruit, unwholesome meats or diseased cattle, the constitutional requirement of "just compensation" clearly does not compel the state to reimburse the owner for the property destroyed because such property is valueless, incapable of any lawful use, and a source of public danger. The Court went on to conclude that "just compensation" was a clear requisite, however, to the act of destroying healthy trees. Id. at 406-07. See also Corneal, 95 So.2d 1 (A healthy plant may not be destroyed in order to protect a neighbor's plant of the same species without compensation to the owner.) Accordingly, consistent with our decisions in State Plant Board and Corneal, we answer the certified question in the negative.

Finally, we reject the Department's claim that even if the certified question is answered in the negative, no compensation is required under the present circumstances because the trees that were destroyed had been in the presence of or exposed to canker infested nursery stock and were therefore not healthy. As the district court below correctly observed, "[w]hether regulatory action of a public body amounts to a taking must be determined from the facts of each case", 505 So.2d at 593, and the trial judge in an inverse condemnation suit is the trier of all issues, legal and factual, except for the question of what amount constitutes just compensation. See United States v. Certain Parcels of Land in Monroe County, 509 F.2d 801, 803 (5th Cir.1975); Pinellas County v. Brown, 420 So.2d 308 (Fla. 2d DCA 1982), petition for review denied, 430 So.2d 450 (Fla.1983). The trial court's determination of liability in an inverse condemnation suit is presumed correct and its findings will not be disturbed on appeal if supported by competent, substantial evidence. See Atlantic International Investment Corp. v. State, 478 So.2d 805, 808 (Fla.1985); Faison v. Division of Administration, Department of Transportation, 299 So.2d 629, 630 (Fla. 1st DCA), cert. denied, 305 So.2d 201 (Fla.1974); Hardwick v. Metropolitan Dade County, 256 So.2d 387, 390 (Fla. 3d DCA 1972).

A review of the record in the present case reveals substantial competent evidence was presented at trial on which the trial court based its finding that the trees...