Haire v. FLA. DEPT. OF AGR. & CONS. SERV.

• Decision Date: 12 February 2004
• Docket Number: No. SC03-446, No. SC03-552.
• Parties: John M. HAIRE, et al., Petitioners, v. FLORIDA DEPARTMENT OF AGRICULTURE AND CONSUMER SERVICES, Respondent. Brooks Tropical, Inc., Petitioner, v. Florida Department of Agriculture and Consumer Services, Respondent.
• Court: Florida Supreme Court

870 So.2d 774

John M. HAIRE, et al., Petitioners, v. FLORIDA DEPARTMENT OF AGRICULTURE AND CONSUMER SERVICES, Respondent.

Brooks Tropical, Inc., Petitioner, v. Florida Department of Agriculture and Consumer Services, Respondent.

Nos. SC03-446, SC03-552.

Supreme Court of Florida.

February 12, 2004.

Rehearing Denied April 6, 2004.

Edward A. Dion, Broward County Attorney, and Andrew J. Meyers, Chief Appellate Counsel, Fort Lauderdale, FL; Robert A. Ginsburg, Miami-Dade County Attorney, and Robert A. Duvall, III, Assistant County Attorney, Miami, FL; Samuel S. Goren, City Attorney, City of Coral Springs, and Michael D. Cirullo of Goren, Cherof, Doody & Ezrol, P.A., Fort Lauderdale, FL; Monroe D. Kiar, Town Attorney, Town of Davie, Davie, FL; Diana Grub Frieser, City Attorney, and John O. McKirchy, Assistant City Attorney, Boca Raton, FL; and Gordon B. Linn, City Attorney, and Jim Stokes, Assistant City Attorney, City of Pompano Beach, Pompano Beach, FL, on behalf of John M. Haire, et al.; and Craig P. Kalil of Aballi, Milne, Kalil & Escagedo, P.A., Miami, FL; William J. Moore, III of Henrichsen Siegel Moore, Jacksonville, FL; and Malcolm A. Misuraca of the Law Offices of Malcolm A. Misuraca, Newport Beach, CA, on behalf of Brooks Tropicals, Inc., for Petitioners.

Arthur J. England, Jr., Elliot H. Scherker, and Elliot B. Kula of Greenberg Traurig, P.A., Miami, FL; Jerold I. Budney of Greenberg Traurig, P.A., Fort Lauderdale, FL; and David C. Ashburn of Greenberg Traurig, P.A., Tallahassee, FL, on behalf of Florida Department of Agriculture and Consumer Services, for Respondent.

Michael L. Rosen of Shook, Hardy & Bacon, L.L.P., Tampa, FL, for Florida Citrus Mutual, Amicus Curiae.

PARIENTE, J.

The primary issue in this case is whether the State, through the Department of Agriculture and Consumer Services (Department), is acting within permissible constitutional boundaries by destroying privately owned citrus trees that are within 1900 feet of a tree infected with citrus canker, even though the destroyed trees show no outward signs of infection and appear healthy. To resolve this issue, we must address the constitutionality of section 581.184, Florida Statutes (2003) (Citrus Canker Law), which contains the statutory authority for the Department to destroy privately owned citrus trees under its Citrus Canker Eradication Program.¹ For the reasons expressed in this opinion, we hold that the Citrus Canker Law is constitutional.

The Fourth District Court of Appeal expressly declared the Citrus Canker Law constitutional, concluding that the statute did not deny either substantive or procedural due process as guaranteed by the Fifth and Fourteenth Amendments to the United States Constitution and article I, section 9 of the Florida Constitution. See Fla. Dep't of Agric. & Consumer Servs. v. Haire, 836 So.2d 1040, 1060 (Fla. 4th DCA 2003). The Fourth District further concluded that section 933.07(2), Florida Statutes (2003), which authorizes county-wide search warrants, was unconstitutional under the Fourth Amendment to the United States Constitution and article 1, section 12 of the Florida Constitution. See 836 So.2d at 1060. However, the Fourth District determined that there was no Fourth Amendment violation in the inclusion of multiple properties in a single affidavit and search warrant, and in the magistrate's use of an electronic signature. See id.

Although the State does not appeal the determination that section 933.07(2) is unconstitutional, the petitioners, who own citrus trees that have been destroyed or are targeted for destruction, contend that the Citrus Canker Law is unconstitutional because it allows for the destruction of private property without full and just compensation and fails to provide a meaningful opportunity to be heard prior to removal of the citrus trees. The petitioners also challenge the Fourth District's holding that it is permissible under the Fourth Amendment for a magistrate to issue a single search warrant for multiple properties and use an electronic signature.

I. CITRUS CANKER: HISTORY TO DATE

Citrus canker is a disease that is caused by citrus canker bacteria, which attack the fruits, leaves and stems of citrus plants. The bacteria are spread from tree to tree primarily by wind-driven rain or the contamination of equipment or plant material. Although the fruit of an infected tree remains edible, the disease causes defoliation, fruit drop and loss of yield, as well as blemishes on the fruit and a loss of quality. In severe cases, citrus canker can cause girdling of the stems and death of the tree.

Efforts to eradicate citrus canker date 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.

. . . .

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.

Haire, 836 So.2d at 1043 (quoting Fla. Dep't of Agric. & Consumer Servs. v. City of Pompano Beach, 792 So.2d 539, 541-42 (Fla. 4th DCA 2001)). The Department has assessed the effect of citrus canker on Florida's citrus industry, concluding that

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.

Id. at 1044 (quoting City of Pompano Beach, 792 So.2d at 542).

For a period of time, the Citrus Canker Eradication Program called for destruction of citrus trees within a 125-foot radius of an infected tree. As explained by the Fourth District in its decision below, the Department later determined that this distance was not effective at stopping the spread of citrus canker:

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"][²] 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. (quoting City of Pompano Beach, 792 So.2d at 542) (alterations in original) (footnote added). The Department adopted the Task Force's recommendation, which was soon the subject of a legal challenge. The procedural history of the challenge to the administrative rule is set forth in the Fourth District's opinion. See id. at 1044-45. However, it is the constitutionality of the subsequently passed statute, which also adopted the 1900-foot radius, which is the focus of this case.

II. CITRUS CANKER LAW

During the 2002 legislative session, section 581.184 was amended to require the Department to remove and destroy all citrus trees infected with the citrus canker bacteria and all citrus trees "exposed to infection." See ch.2002-11, § 1, Laws of Fla. (codified at § 581.184(2), Fla. Stat. (2003)). The Legislature defined "infected" trees as those "harboring the citrus canker bacteria and exhibiting visible symptoms of the disease." § 581.184(1)(a), Fla. Stat. (2003). Citrus trees that are "[e]xposed to infection" are those "located within 1,900 feet of an infected tree." § 581.184(1)(b).³

In order to carry out the destruction of infected and exposed trees the Department is authorized to provide notice to property owners of the removal of such trees by immediate final order (IFO). See § 581.184(2)(a). The IFO serves as notice to the property owner that the subject citrus trees will be removed and destroyed unless the property owner requests and obtains a stay from the appropriate district court of appeal no later than ten days after delivery of the IFO. See id.

With respect to compensation, section 581.1845,...