State, Dept. of Agriculture and Consumer Services v. Mid-Florida Growers, Inc., MID-FLORIDA

• Decision Date: 10 April 1987
• Docket Number: MID-FLORIDA,No. 86-2785,86-2785
• Citation: 505 So.2d 592,12 Fla. L. Weekly 1016
• Court: Florida District Court of Appeals
• Parties: 12 Fla. L. Weekly 1016 STATE of Florida, DEPARTMENT OF AGRICULTURE AND CONSUMER SERVICES, Appellant, v.GROWERS, INC., and Himrod & Himrod Citrus Nursery, a partnership composed of Joe Himrod and Joe B. Himrod, Appellees.

Page 592

505 So.2d 592

12 Fla. L. Weekly 1016

STATE of Florida, DEPARTMENT OF AGRICULTURE AND CONSUMER SERVICES, Appellant, v. MID-FLORIDA GROWERS, INC., and Himrod & Himrod Citrus Nursery, a partnership composed of Joe Himrod and Joe B. Himrod, Appellees.

No. 86-2785.

District Court of Appeal of Florida,

Second District.

April 10, 1987.

Harry Lewis Michaels, Tallahassee, for appellant.

M. Stephen Turner of Culpepper, Pelham, Turner & Mannheimer, Tallahassee, for appellees.

RYDER, Acting Chief Judge.

We are here concerned with a complicated issue of law which appears to challenge the long-standing precept that the government, through its police power, may destroy or regulate property "to promote the health, morals and safety of the community" without compensating the property owner for the loss of use of the property or for a decrease in property value. The issue on this appeal is whether the state of Florida, pursuant to its police power, has the constitutional authority to destroy healthy, but "suspect" citrus plants without compensating nursery owners. The following facts are undisputed.

During 1984, appellees operated citrus nurseries in Hardee County, Florida. In April 1984, appellees obtained citrus budwood from Ward's Nursery, a citrus nursery in Polk County. On August 27, 1984, a form of citrus canker was discovered at Ward's Nursery. On September 6, 1984, the Department of Agriculture obtained samples from appellees' nurseries. On September 10, 1984, the Department informed appellees that the tests were negative: they did not establish that any stock was infected with citrus canker. Despite this fact, however, on October 2, 1984, appellees were advised that their nurseries had to be burned and that quarantine was not an acceptable alternative. On October 16, 1984, the Department entered an emergency confirmatory order designating appellees' nurseries as eradication areas and directing destruction of their nursery stock from Ward's Nursery and all other stock within 125 feet thereof. From October 7 to October 19, 1984, the Department burned some 137,880 of Mid-Florida's and 143,594 of Himrod's citrus trees.

Appellees brought this action seeking full and just compensation based upon inverse condemnation for the destruction of citrus trees by the state as a result of its efforts to eradicate citrus canker. A trial was held on the liability issue alone. The trial judge held that a taking had occurred and ordered a jury trial as to damages. The trial judge stated:

This cause came on for trial on September 24, 1986, on the issue of liability only, and having weighed the evidence and considered the Pretrial Stipulation, the Court finds:

1. A police power circumstance existed to protect the economic public welfare, and Defendant's actions with respect to Plaintiffs' nursery stock were within its police power.

2. 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).

3. Defendant knew that Plaintiffs were not authorizing full satisfaction of their claims and would accept any payment as partial only, and Defendant forewent any right to rely on its own condition of payment. Therefore, Plaintiffs did not release their constitutional right to just compensation.

This appeal ensued.

Whether regulatory action of a public body amounts to a taking must be determined from the facts of each case. Pinellas County v. Brown, 450 So.2d 240, 242 (Fla. 2d DCA 1984); Pinellas County v. Brown, 420 So.2d 308, 309 (Fla. 2d DCA 1982). 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 substantial, competent evidence. Faison v. Division of Administration, Department of Transportation, 299 So.2d 629 (Fla. 1st DCA 1974). The trial court's order in the instant case is clearly supported by substantial, competent evidence. Accordingly, we affirm.

Initially, we must draw attention to the difference between the power of eminent domain and the police power. Eminent domain is the sovereign power to take property for a public use or purpose. The sovereign must make just compensation for any property taken. Police power is the sovereign power to destroy or regulate the use of property to "promote the health morals and safety of the community." The sovereign may exercise its police power without making just compensation for the property taken. Adams v. Housing Authority of City of Daytona Beach, 60 So.2d 663 (Fla.1952).

A valid exercise of the police power does not preclude an inverse condemnation suit. "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." Albrecht v. State, 444 So.2d 8, 12 (Fla.1984).

It is difficult to determine when the valid exercise of police power stops and an impermissible encroachment on private property rights begins. No settled formula exists. Whether a valid exercise of the police power results in a taking must be decided on the facts of each case. The Florida Supreme Court has compiled the following list of factors which have been used in analyzing takings in the past:

1. Whether there is a physical invasion of the property.

2. The degree to which there is a diminution in value of the property. Or stated another way, whether the regulation precludes all economically reasonable use of the property.

3. Whether the regulation confers a public benefit or prevents a public harm.

4. Whether the regulation promotes the health, safety, welfare, or morals of the public.

5. Whether the regulation is arbitrarily and capriciously applied.

6. The extent to which the regulation curtails investment-backed expectations.

Graham v. Estuary Properties, Inc., 399 So.2d 1374, 1380-81 (Fla.1981). The Florida Supreme Court further stated: "If the regulation is arbitrarily and capriciously applied it is an invalid exercise of eminent domain, whereas if a public harm is prevented it is more likely an exercise of the police power." Id. at 1381. The court then stated, "[i]t may be, however, that a regulation complies with standards required for the police power but still results in a taking," citing as authority Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 43 S.Ct. 158, 67 L.Ed. 322 (1922). The court construed Pennsylvania Coal Co. as follows:

In Pennsylvania Coal Co. the Court considered a Pennsylvania statute, passed to protect the public safety, which prohibited subsurface mining of coal if such mining would cause subsidence of the surface. The Court held that enforcement of the statute amounted to a taking which required compensation. In holding that the mining prohibition was unconstitutional as applied, the court emphasized that the statute rendered the coal company's rights to subsurface minerals virtually worthless.

Graham, 399 So.2d at 1381.

Similarly, the United States Supreme Court has stated that whether a taking has occurred can only be determined on a case-by-case basis:

While this court has recognized that the "Fifth Amendment's guarantee ... is designed to bar Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole," Armstrong v. United States, 364 U.S. 40, 49, 80 S.Ct. 1563, 1569 (1960), this Court, quite simply, has been unable to develop any "set formula" for determining when "justice and fairness" require that economic...