Florida Department of Agriculture & Consumer Services v. Mendez

126 So. 3d 367, 2013 WL 5628727, 2013 Fla. App. LEXIS 16396
CourtDistrict Court of Appeal of Florida
DecidedOctober 16, 2013
DocketNo. 4D11-3271
StatusPublished

This text of 126 So. 3d 367 (Florida Department of Agriculture & Consumer Services v. Mendez) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Florida Department of Agriculture & Consumer Services v. Mendez, 126 So. 3d 367, 2013 WL 5628727, 2013 Fla. App. LEXIS 16396 (Fla. Ct. App. 2013).

Opinion

WARNER, J.

The Department of Agriculture appeals a multimillion dollar judgment in a class action for inverse condemnation. The class action sought compensation as a result of the Depai-tment’s destruction of thousands of citrus tx-ees in Palm Beach County during the Department’s Citrus [369]*369Canker Eradication Program (CCEP). The Department raises multiple issues dealing both with the court’s order establishing a taking, as well as with the jury trial on compensation. We address the Department’s contention that the trial court failed to apply the correct statutory presumption of harm and burden of proof in the takings portion of the trial as well as the exclusion of scientific evidence in the compensation portion of the trial. As to the application of the statutory presumption in the takings trial, not only was the evidence establishing a taking overwhelming, thus meeting the burden of proof to overcome the presumption, the issue of a compensable taking had already been resolved in Haire v. Florida Department of Agriculture and Consumer Services, 870 So.2d 774 (Fla.2004), and Patchen v. Florida Department of Agriculture and Consumer Services, 906 So.2d 1005 (Fla.2005). We reverse, however, the compensation trial, because the trial court excluded significant scientific evidence relevant to the appraisers’ valuation of the citrus trees.

Background

Florida has fought the plant disease of citrus canker for decades. It affects citrus trees by attacking their fruit, leaves and stems, causing leaf drop and unsightly fruit blemishes, even though the fruit remains edible. The bacteria which causes it is spread by wind, rain, and contamination of equipment used on trees. The history of citrus canker in Florida and the efforts to eradicate it have already been well documented in legal opinions. See Haire v. Fla. Dep’t of Agric. & Consumer Servs., 870 So.2d at 778-79; Fla. Dep’t of Agric. & Consumer Servs. v. Haire, 836 So.2d 1040, 1043-46 (Fla. 4th DCA 2003); Fla. Dep’t of Agric. & Consumer Servs. v. City of Pompano Beach, 792 So.2d 539, 541-42 (Fla. 4th DCA 2001).

The state’s main strategy to fight the disease, which has no cure, has been to eradicate it by identifying and destroying diseased trees, as well as surrounding exposed trees. At first, the Department destroyed trees within 125 feet of an infected tree. See Dep’t of Agric. & Consumer Servs. v. Mid-Florida Growers, Inc., 521 So.2d 101, 102-03 (Fla.1988). In Mid-Florida Growers, our supreme court held that, although the State acted under its police power in destroying the trees, it was still required to compensate owners for the destruction of healthy trees which were not diseased. The court rejected the Department’s contention that all exposed trees were unhealthy and thus required no compensation. The court concluded that whether a taking has occurred must be determined from the facts and circumstances of each case. Id. at 103-04.

Finding that the 125-foot barrier was ineffective to stem the spread of the disease, the Department obtained another study which established a 1,900-foot radius from an infected tree, within which exposed trees should be destroyed to prevent spread and eradicate the disease. The Department first adopted a rule, followed by the enactment of section 581.184, Florida Statutes (2003), requiring the destruction of infected trees and all trees within a 1,900-foot radius of an infected tree. Section 581.184, Florida Statutes, provided methods of implementing the plan, and section 581.1845, Florida Statutes (2003), authorized compensation to homeowners for trees removed pursuant to the program at a set amount of $100 per tree.1 In apparent recognition of the constitutional implications of the taking of private [370]*370property, the statute specifically provided that the compensation provided in the statute did not limit the amount which may be provided by court order for trees destroyed through the program. § 581.1845(4), Fla. Stat. (2003).

In Haire, our supreme court upheld the constitutionality of section 581.1845 as a valid exercise of the state’s police power requiring compensation for destroyed trees which were uninfected, albeit exposed:

[W]e conclude that under the statutory scheme the State is obligated to provide more than token compensation if the State has destroyed a healthy, albeit exposed tree.10 Section 581.1845 expressly states that the specified per-tree amount “does not limit the amount of any other compensation that may be paid ... pursuant to court order for the removal of citrus trees as part of a citrus canker eradication program.” § 581.1845(4) (emphasis supplied). Thus, the Citrus Canker Law sets a compensation floor that is consistent with the established principle that “the determination of what is just compensation ... is a judicial function that cannot be performed by the Legislature.” [State Plant Bd. v.] Smith, 110 So.2d [401] at 407 [ (Fla.1959) ] (quoting Spafford v. Brevard County, 92 Fla. 617, 110 So. 451, 454 (1926)).
In accord with our precedent, we conclude that the schedule established by the Legislature sets a floor but does not determine the amount of compensation. When the State destroys private property, the State is obligated to pay just and fair compensation as determined in a court of law. We emphasize that the fact that the Legislature has determined that all citrus trees within 1900 feet of an infected tree must be destroyed does not necessarily support a finding that healthy, but exposed, residential citrus trees have no value.
10 The petitioners agree that if a citrus tree shows visible signs of the disease and is therefore "infected,” there is no compensable taking.

Haire, 870 So.2d at 785.

Because the court had determined in Department of Agriculture and Consumer Services v. Polk, 568 So.2d 35 (Fla.1990), that citrus trees in a commercial nursery within 125 feet of an infected tree had no marketable value, the question remained as to whether exposed residential trees within 1,900 feet of an infected tree also were of no value, and thus required that no compensation be paid for their destruction. In Patchen, the court answered that question by stating that homeowners whose trees were within the ambit of section 581.1845 were not governed by Polk because the Legislature itself had established that they were due compensation for their trees:

The 2002 statute clearly intends that the petitioners be included within the homeowners covered by section 581.1845(2) in that their citrus trees were removed as part of a citrus canker eradication program after January 1, 1995. Polk does not apply to these homeowners. Rather, these homeowners and others similarly situated who meet the requirements of section 581.1845(2)(a), (b), and (c), may receive compensation pursuant to that statute as construed and upheld in our decision in Haire ....

906 So.2d at 1008. This included the statutorily authorized per tree compensation, as well as any court-ordered compensation contemplated by the statute. In a concurring opinion, Justice Pariente noted, “Molding that the statute applies under the circumstances of this case relieves the homeowners of the burden of proving that [371]*371a taking occurred,

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DEPT. OF AGRIC. AND CONSUMER SERV. v. Mid-Florida Growers, Inc.
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Spafford v. Brevard County
92 Fla. 617 (Supreme Court of Florida, 1926)
Department of Agriculture & Consumer Services v. Polk
568 So. 2d 35 (Supreme Court of Florida, 1990)
C.E. Huffman Trucking, Inc. v. Red Cedar Corp.
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Bluebook (online)
126 So. 3d 367, 2013 WL 5628727, 2013 Fla. App. LEXIS 16396, Counsel Stack Legal Research, https://law.counselstack.com/opinion/florida-department-of-agriculture-consumer-services-v-mendez-fladistctapp-2013.