Florida Dept. of Agriculture and Consumer Services v. Haire

• Decision Date: 15 January 2003
• Docket Number: No. 4D02-2584, 4D02-3315.,4D02-2584, 4D02-3315.
• Citation: 836 So.2d 1040
• Parties: FLORIDA DEPARTMENT OF AGRICULTURE AND CONSUMER SERVICES, Appellant, v. John M. and Patricia A. HAIRE, Carolyn Seligman, Laz and Ellen Schneider, Susan B. Peterson, Stephen M. Wolfman, Robert Scherer, Susan and Hiram Frank, Judith and Bernard Macnow, Mike Costa Foliage, Inc., Broward County, Miami-Dade County, City of Plantation, City of Fort Lauderdale, City of Pompano Beach, City of Coral Springs, Town of Davie, City of Hollywood, City of Boca Raton, Brooks Tropicals, Inc. and Village of Pinecrest, Appellees.
• Court: Florida District Court of Appeals

836 So.2d 1040

FLORIDA DEPARTMENT OF AGRICULTURE AND CONSUMER SERVICES, Appellant, v. John M. and Patricia A. HAIRE, Carolyn Seligman, Laz and Ellen Schneider, Susan B. Peterson, Stephen M. Wolfman, Robert Scherer, Susan and Hiram Frank, Judith and Bernard Macnow, Mike Costa Foliage, Inc., Broward County, Miami-Dade County, City of Plantation, City of Fort Lauderdale, City of Pompano Beach, City of Coral Springs, Town of Davie, City of Hollywood, City of Boca Raton, Brooks Tropicals, Inc. and Village of Pinecrest, Appellees.

No. 4D02-2584, 4D02-3315.

District Court of Appeal of Florida, Fourth District.

January 15, 2003.

Rehearing Denied February 17, 2003.

Arthur J. England, Jr., Elliot H. Scherker and Elliot B. Kula of Greenberg Traurig, P.A., Miami, Jerold I. Budney, Greenberg Traurig, P.A., Fort Lauderdale, David C. Ashburn, Greenberg Traurig, P.A., Tallahassee, for appellant.

Robert A. Ginsburg, Miami-Dade County Attorney and Robert A Duvall, III, Assistant County Attorney, Miami, for appellee Miami-Dade County.

Edward A. Dion, Broward County Attorney, Tamara M. Scrudders, Assistant County Attorney, and Andrew J. Meyers, Chief Appellate Counsel, Fort Lauderdale, for appellee Broward County.

Craig P. Kalil of Aballi, Milne, Kalil & Escagedo, P.A., Miami, and Malcolm A. Misuraca of Resolution Law Group, Lafayette, California, for appellee Brooks Tropicals, Inc.

WARNER, J.

Appellant, the Florida Department of Agriculture ("the Department"), challenges the trial court's temporary injunction declaring the 2002 Citrus Canker Law amendments unconstitutional and enjoining the Department from entering upon private property without individually issued search warrants. The issues presented are: (1) whether section 581.184, Florida Statutes (2002), requiring the removal of citrus trees within 1900 feet of a tree infected with canker, violates substantive and procedural due process; (2) whether the Department has the authority to conduct warrantless searches of residential private property; (3) if search warrants are required, whether area-wide search warrants authorized under section 933.07(2), Florida Statutes (2002), are unconstitutional; and (4) if area-wide search warrants are unconstitutional, whether individual search warrants each supported by a separate affidavit of probable cause and signed by a neutral magistrate, without the use of an electronic signature, are mandated. We hold that section 581.184 does not violate due process and is therefore constitutional, but that section 933.07(2) does violate the Fourth Amendment. We further hold that magistrates have discretion to include multiple properties in affidavits and search warrants and to use electronic signatures.

In Florida Department of Agriculture & Consumer Services v. City of Pompano Beach, 792 So.2d 539 (Fla. 4th DCA 2001), we described the history of the citrus canker eradication effort in Florida from its discovery in 1914:

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 wind-driven 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 ["the Gottwald study"] that would measure the distances that citrus canker, Asian strain, would spread in South Florida.

The [Gottwald] 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 [Gottwald] 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.

Id. at 541-42.

The Department adopted the task force's recommendation in furtherance of its goal to eradicate citrus canker and implemented a policy requiring the destruction of citrus trees within 1900 feet of an infected tree. See id. at 542. Litigation ensued over the adoption of the rule on an emergency basis. See id. at 543. As a result, the Department was enjoined from cutting down healthy trees having no visible signs of infection located within 1900 feet of an infected citrus tree. See id. The trial court determined, inter alia, that the rule was not adopted in accordance with the rulemaking procedure contained in the Administrative Procedure Act. See id. at 544. We reversed the trial court's order and directed dismissal of the complaint because the plaintiffs failed to exhaust their administrative remedies. See id. at 548.

During the same time period that the plaintiffs sought an administrative review of the rule's adoption before the Division of Administrative Hearings, the Legislature reacted by enacting Florida Law Chapter 2002-11 which adopted the "1900 foot rule." Ch.2002-11, § 1, at 311, Laws of Fla. Appellees then filed an amended complaint for declaratory and injunctive relief against the Department and the State of Florida alleging that the new law violates substantive and procedural due process, constitutes the taking of property without just compensation, and permits unreasonable searches and seizures. Appellees moved for a temporary injunction, which the trial court granted after an extensive hearing. In its order, the court made the following conclusions: 1) sections 581.184 and 933.07 are unconstitutional because they violate Article I, Section 12 of the Florida Constitution and the Fourth Amendment of the United States Constitution; 2) the scientific principles upon which section 581.184 is founded are unsound and do not provide adequate justification for the legislature to abrogate the rights of property owners; 3) citrus trees that do not patently demonstrate citrus canker pathogens do have a value and cannot be destroyed without providing full and fair compensation to owners as determined in condemnation proceedings; 4) the Department "is temporarily enjoined from entering upon private property anywhere in Florida in the absence of a valid search warrant issued by an authorized judicial officer and executed by one authorized by law to do so"; 5) geographic search warrants cannot be county wide; and 6) search warrants must be executed by duly authorized law enforcement officers.

In response to the trial court's order, the Department filed an amended application for search warrants. It requested warrants to search 7,402 properties located within a single Township for plants infected with citrus canker. The Department had previously surveyed 2,350 properties in the Township and found fifty citrus trees on forty-seven properties infected with citrus canker. The Department also requested the trial judge permit it to electronically place his signature on the warrants. A trial judge, other than the judge who issued the temporary injunction, granted the Department's application for search warrants upon the following conditions: the Department would destroy only those trees actually infected with citrus canker, as opposed to merely those exposed to citrus canker; the Department would issue the...