By Clark, Campbell, Lancaster & Munson, P.A.

Q: I raise wild birds for sale as pets on my property.  Can I qualify for an agricultural tax exemption for my property?

 A:  In McLendon v. Nikolits, the 4^th District Court of Appeal (DCA) recently held that a property owner who engages in aviculture – raising wild birds for sale as pets – can qualify for an agricultural tax classification for the part of their property used for aviculture.  The 4^th DCA’s decision may also perhaps be applied to other types of pet breeding, such as dog breeding, and the agricultural tax exemption if they qualify.

Todd and Shire McLendon own a 5-acre parcel located in Palm Beach County, and the McLendons have used the property for aviculture since 2006.  From 2006 through 2012, the Palm Beach County Property Appraiser granted an agricultural tax classification for 4.5 of their acres because of its dual uses for aviculture and cattle grazing.

In 2012, the Property Appraiser denied the agricultural tax classification for the McLendons’ 4.5 acres and issued the tax classification for only 2.25 acres.  The McLendons appealed, and the Value Adjustment Board (VAB) held that 4.5 acres should be given the agricultural classification.

In 2013, the Property Appraiser again denied the agricultural tax classification for the part of the property devoted to aviculture.  The McLendons appealed again, and a special magistrate appointed by the VAB found in favor of the McLendons.  The Property Appraiser appealed to the circuit court, and the Property Appraiser also denied the agricultural classification for 2014.

The Property Appraiser argued that the legislature intended to limit agricultural activities to only those listed in the statute because the legislature included only “poultry” and not “aviculture” in the list of activities that constitute “agricultural purposes” in the statute.

However, the McLendons argued that the legislature did not intend for the list to be exclusive or exhaustive because the legislature used “includes, but is not limited to” in the statute.

The trial court concluded that aviculture was intentionally left out of the statute and that bird-related activities qualifying as agriculture were limited to “poultry.”  The trial court also indicated that allowing the breeding of pets, and birds in particular, to qualify for an agricultural exemption, would open the floodgates and allow many landowners to claim the agricultural exemption for various types of pet breeding thus in turn leading to abuse of the system.

On appeal, the 4^th DCA found that “includes, but is not limited to” is not ambiguous, and the 4^th DCA found that the term “farm product” is defined in Fla. Stat. § 823.14(3) as “any…animal…useful to humans” under the Florida Right to Farm Act.

Through the use of expert witness affidavits at trial, the McLendons were able to convince the court that aviculture is useful to humans for reasons such as companionship, concern for endangered species, entertainment, education, and scientific purposes.

Accordingly, the 4^th DCA reversed the trial court’s decision and held that the McLendons’ portion of the property used for aviculture qualifies for an agricultural tax exemption.  It will be interesting to see how the Polk County Property Appraiser reacts to this recent decision, and unless the Florida legislature closes this loophole, this might be a case for the 2^nd DCA and perhaps Florida Supreme Court to decide if there is a conflict between DCA’s.

By: Clark, Campbell, Lancaster & Munson, P.A.

Q: It appears animal cruelty is on the rise. What laws are in place to protect these animals?

A: For years, compassion for animals and anger toward abuse have been triggered by circus elephant acts, killer whales in confinement, and greyhound races. But, partly because the law allows these exhibitions, only recently have we heard of changes, such as Ringling Brothers voluntarily retiring its elephants. The Florida legislature continues to expand protections for animals, including this month by taking a look at bills to protect greyhounds and horses involved in racing, with some lobbying groups trying to make greyhound racing unprofitable.

An extensive set of animal cruelty laws exist, primarily protecting livestock, dogs, and cats from the more horrifying stories we have heard recently, like animals being tied to railroad tracks or hung to death. A “zombie cat” allegedly buried alive was taken into possession by an animal welfare organization. While individuals could be accused of theft for taking another’s pet away regardless of suspected abuse, Florida allows certain organizations (in addition to law enforcement) to have an agent appointed for that purpose. When an animal is seized, a court hearing follows to determine whether the animal will be returned.

With limited exceptions, animal cruelty includes allowing any “unnecessary or unjustifiable pain or suffering”. Tormenting, starving, and mutilating all fall within this term and are at least a first degree misdemeanor (up to $5,000 fine / 1 year imprisonment) and as much as a third degree felony (up to $10,000 fine / 5 years imprisonment) for repeated, intentional acts, acts that result in death, or being any part of dog fighting (breeding, training, owning, promoting, betting, attending, or otherwise). Additional specific offenses prohibited by law include keeping a dog confined without exercise, abandoning in a public place, lassoing of horses for entertainment or sport, engaging in simulated bullfight exhibitions, allowing others to be exposed to a known contagious animal, and artificially coloring an animal under 12 weeks of age.

Contact animal control or other local law enforcement if you suspect animal cruelty is occurring in your neck of the woods.

The April 9th edition of “The Law” will celebrate National Public Health Week and address the dichotomy between science and the law on the issue of GMOs.

Questions can be submitted online to thelaw@clarkcampbell-law.com.]