Florida Dept. of Agriculture & Consumer Services v. CITY OF POMPANA BEACH

• Decision Date: 11 July 2001
• Docket Number: No. 4D00-4116.,4D00-4116.
• Citation: 792 So.2d 539
• Parties: FLORIDA DEPARTMENT OF AGRICULTURE & CONSUMER SERVICES and Bob Crawford, in his official capacity as Commissioner of the Florida Department of Agriculture and Consumer Services, Appellants/Cross-Appellees, v. CITY OF POMPANO BEACH, a municipal corporation of the State of Florida; Cesar delCampo and Linda delCampo; Town of Davie, a muncipal corporation of the State of Florida; Arthur and Marsha Joseph; Michael Bender; Katherine Cox; Toby Bogorff; City of Coconut Creek, a municipal corporation; Robert R. Bazyk; James N. Henry; Town of Southwest Ranches, a municipal corporation of the State of Florida; Donald and Gretta Pickney; Lily Sayre; City of Plantation, a municipal corporation of the State of Florida; Broward County, a political subdivision of the State of Florida; Patricia and John Haire; City of Margate, a political subdivision of the State of Florida; Caroline Seligman; Cooper City, a municipal corporation of the State of Florida; and Frank Mendola, Appellees/Cross-Appellants.
• Court: Florida District Court of Appeals

792 So.2d 539

FLORIDA DEPARTMENT OF AGRICULTURE & CONSUMER SERVICES and Bob Crawford, in his official capacity as Commissioner of the Florida Department of Agriculture and Consumer Services, Appellants/Cross-Appellees, v. CITY OF POMPANO BEACH, a municipal corporation of the State of Florida; Cesar delCampo and Linda delCampo; Town of Davie, a muncipal corporation of the State of Florida; Arthur and Marsha Joseph; Michael Bender; Katherine Cox; Toby Bogorff; City of Coconut Creek, a municipal corporation; Robert R. Bazyk; James N. Henry; Town of Southwest Ranches, a municipal corporation of the State of Florida; Donald and Gretta Pickney; Lily Sayre; City of Plantation, a municipal corporation of the State of Florida; Broward County, a political subdivision of the State of Florida; Patricia and John Haire; City of Margate, a political subdivision of the State of Florida; Caroline Seligman; Cooper City, a municipal corporation of the State of Florida; and Frank Mendola, Appellees/Cross-Appellants.

No. 4D00-4116.

District Court of Appeal of Florida, Fourth District.

July 11, 2001.

Arthur J. England, Jr., Elliot H. Scherker and Elliot B. Kula, Miami and Jerold I. Budney of Greenberg Traurig, PA, Fort Lauderdale, for appellants/cross-appellees.

Gordon B. Linn, City Attorney, and William J. Bosch, Assistant City Attorney, Pompano Beach, for Appellee/Cross-Appellant-City of Pompano Beach.

Edward A. Dion, Broward County Attorney and Andrew J. Meyers, Chief Appellate Counsel, Tamara M. Scrudders and Jose Arrojo, Assistant County Attorneys, Fort Lauderdale, for Appellee/Cross-Appellant-Broward County.

Jamie A. Cole of Weiss, Serota, Helfman, Pastoriza & Guedes, PA, Fort Lauderdale, for Appellee/Cross-Appellant-City of Dania Beach.

Monroe D. Kiar, Davie, for Appellee/Cross-Appellant-Town of Davie.

Daniel L. Abbott, Hollywood City Attorney, Hollywood, for Appellee/Cross-Appellant-City of Hollywood.

Keith M. Poliakoff of Becker & Poliakoff, Fort Lauderdale, for Appellee/Cross-Appellant-Town of Southwest Ranches.

Donald L. Lunny, Jr. and Veronica Vilarchao of Brinkley, McNerney, Morgan, Solomon & Tatum, LLP, Fort Lauderdale, for Appellee/Cross-Appellant-City of Plantation.

James A. Cherof and Michael D. Cirullo of Josias, Goran, Cherof, Doody & Ezrol, PA, Fort Lauderdale, for Appellee/Cross-Appellant-City of Coral Springs.

Eugene M. Steinfeld, Margate, for Appellee/Cross-Appellant-City of Margate.

John and Patricia Haire, Fort Lauderdale, pro se.

ON MOTION FOR CLARIFICATION AND/OR TO CERTIFY CONFLICT

HAZOURI, J.

We deny the appellee's motion to certify conflict, grant appellee's motion for clarification, withdraw our opinion filed June 20, 2001, and substitute the following opinion in its place.

Citrus canker was discovered in Florida in 1914 and eradication programs continued through the mid 1930s. In the mid 1980s, an Asian strain of citrus canker, xanthomonas axonopodis pv.citri., the strain of citrus canker at issue in this case, was discovered in Manatee County. It was considered eradicated in 1992 and the eradication program halted in 1994. However, in 1995 an outbreak was discovered around the Miami International Airport.

Citrus canker is a disease that is caused by a bacterial organism that attacks the fruits, leaves and stems of a citrus plant. It causes defoliation, fruit drop and loss of yield. It also causes blemishes on the fruit and a loss of quality. In severe cases, it can cause girdling of the stems and death of the tree.

Stem lesions can survive for many years and are capable of producing bacterial inoculum eight to ten years later. Although symptoms of citrus canker may be seen seven to fourteen days after infection, the maximum visualization does not occur until approximately 107 to 108 days after infection. This makes it difficult to control a disease which easily spreads through winddriven rain or contamination of equipment or plant material.

According to the Florida Department of Agriculture and Consumer Services (Department), citrus canker would have an immediate impact on the fresh citrus industry which comprises twenty-five percent of the commercial citrus industry, amounting to two billion dollars in losses if not eradicated. If it continues to spread, a federal quarantine could be placed on the state. The quarantine would effectively shut down the distribution of fresh citrus products to other states or internationally.

At the time that citrus canker, Asian strain, was discovered in Miami, the citrus canker eradication program in place called for the destruction of trees that were infected or were within a 125 foot radius of an infected tree. The 125 foot radius was adopted in the 1980s as a result of a study conducted in Argentina. However, that study did not take into account what would happen in an urban setting.

In Miami-Dade County, the destruction of citrus trees within a 125 foot radius of an infected tree was not reducing the occurrences of citrus canker. Therefore, the Department decided to initiate a study that would measure the distances that citrus canker, Asian strain, would spread in South Florida.

The study kept track of over 19,000 trees in four sites and determined the distance between the diseased trees and the newly infected trees. The study showed that the eradication program which used the 125 foot radius was inadequate because it only captured about thirty to forty-one percent of infection that spread from a diseased tree.

The results of the study were presented at a meeting in Orlando attended by approximately twenty individuals and scientists. Those at the meeting examined the findings. After considering a range of distances between diseased trees and newly infected trees at the various sites, those present determined that in order to destroy ninety-five percent of newly infected trees, it was necessary to destroy trees within a 1900 foot radius of a diseased tree, thereby creating a buffer zone which would prevent citrus canker from spreading any further.

In March 1999, the Citrus Canker Technical Advisory Task Force, a body of regulatory individuals, scientists and citrus industry representatives who deal with the issue of citrus canker, unanimously recommended that the Department adopt a policy to destroy trees within a 1900 foot radius of a diseased tree in order to eradicate citrus canker.

On January 1, 2000, Commissioner Bob Crawford adopted the recommendation of the task force and the 1900 foot buffer zone policy became effective. In September 2000, pursuant to the policy, its enabling statutes and rule 5B-58.001, the Department began issuing immediate final orders (IFOs)¹ to property owners who either have a tree infected with citrus canker or have a tree within a 1900 foot radius of an infected tree. The IFOs are either hand delivered to the affected property owner or posted on his or her front door.

On September 29, 2000, the Department promulgated an emergency rule², amending the procedure set forth for issuing immediate final orders in rule 558.001(5)(c).³ See 5BER 00-4, 26 Fla. Admin. Weekly 4502 (Sept. 29, 2000). In October, 2000, the IFO was revised. The subsequently revised IFO reorganizes how the information was presented in the initial IFO.

On October 27, 2000, the City of Pompano Beach, the Town of Davie, the City of Coconut Creek, the Town of Southwest Ranches, the City of Plantation, Broward County, the City of Margate, and named residents of each municipality (Appellees)⁴ filed a complaint for declaratory and injunctive relief and a claim for inverse condemnation against the Florida Department of Agriculture and Consumer Services (Department) and its Commissioner, Bob Crawford. The complaint sought a declaratory judgment pertaining to Appellees' rights with regards to the Department's rules, regulations, interpretations, and enforcement methods under Florida's citrus canker eradication program.

The complaint challenged the validity of: (1)the eradication program which requires the destruction of trees infected with citrus canker or within 1900 feet of a tree infected with citrus canker (1900 foot buffer zone policy), and (2)Emergency Rule 5BER 00-4, establishing an expedited procedure for issuing IFOs for the destruction of trees. The complaint alleged that the eradication program deprives property owners (those who are scheduled to have their trees destroyed or who may be scheduled to have their trees destroyed) of their property without compensation or due process and constitutes an unconstitutional seizure of property. The complaint also alleged that the eradication program is arbitrary and capricious and not supported by scientific evidence.

The Department moved to dismiss the complaint for failure to exhaust administrative remedies. Following a hearing on the motion, the trial court determined that whether or not the court should intervene is an issue of policy, not jurisdiction, and the need for expediency in the instant case is hindered by the Department "saying go through the APA mechanism before you get into the judicial arena." The trial court denied the motion to dismiss and set the case for an evidentiary hearing.

At the evidentiary hearing, various experts testified to the history of citrus canker, how it is spread and the resulting consequences should it not be eradicated. Three witnesses, two of whom were named plaintiffs, testified to receiving IFOs. Cesar del Campo testified that he received both the initial IFO and revised IFO, but did not want his trees destroyed. Carolyn Seligman testified that she found out her trees were scheduled for removal when two men from the Department came to remove her trees. The Department asserted that an IFO had been posted on her door. She acknowledged that she may have received an IFO, not realized what it was and thrown it away. After calling the Department, confirming that her trees were scheduled for removal and receiving another IFO, she successfully...