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Filing # 170423995 E-Filed 04/05/2023 03:42:47 PM
IN THE CIRCUIT COURT OF THE NINETEENTH JUDICIAL CIRCUIT
IN AND FOR OKEECHOBEE COUNTY, FLORIDA
CATTLE RANCH HOLDINGS, LLC, a Florida
limited liability company,
Plaintiff,
Vv. Case No. 2023-CA-000185
RALPH FRANKLIN, as Public Safety
Director/Fire Chief for the OKEECHOBEE
COUNTY FIRE RESCUE and the
OKEECHOBEE COUNTY BOARD OF
COUNTY COMMISSIONERS,
Defendants.
/
DEFENDANTS’ MEMORANDUM IN OPPOSITION TO PLAINTIFF’S EMERGENCY
MOTION FOR PRELIMINARY INJUNCTION
COME NOW Defendants, the OKEECHOBEE COUNTY BOARD OF COUNTY
COMMISSIONERS and OKEECHOBEE COUNTY FIRE RESCUE (hereinafter collectively, the
“County”), by and through the undersigned counsel and pursuant to Rule 1.610, Florida Rules of
Civil Procedure, respectfully request that the Court deny the relief requested by Plaintiff, CATTLE
RANCH HOLDINGS, LLC, in its Emergency Motion for Preliminary Injunction and Incorporated
Memorandum of Law (“Emergency Motion”), and as grounds therefore state the following:
INTRODUCTION
1 The County files this memorandum in opposition to Plaintiff's Emergency Motion,
as the factual and legal assertions set out in Plaintiff's Complaint and Emergency Motion utterly
fail to meet the standard for the entry of a preliminary injunction.
2. As more fully set forth herein, after repeated communications with Plaintiffs
representatives, and after inspection of the Structure (as defined herein), County representatives
Electronically Filed Okeechobee Case # 2023000185CAAXMX 04/05/2023 03:42:47 PM
found that the Structure was required to, but did not, comply with the Florida Fire Prevention Code
and Florida Building Code, and took appropriate action to protect the health and safety of the public.
FACTUAL BACKGROUND
THE STRUCTURE
3 Plaintiff is the owner of real property located at 8900 NE 12th Lane, Okeechobee,
Florida 34972 (the “Subject Property”) that is located within the County’s jurisdiction. At all times
material to the instant lawsuit, the County had the legal authority to make the determinations and
take the resulting enforcement actions described herein.
4 The Subject Property contains a structure that Plaintiff uses as a full-time wedding
venue (the “Structure”). The Structure is the subject of County’s enforcement actions at the Subject
Property. Photographs of the Structure are attached hereto as Composite Exhibit A. As these
photographs depict, the Structure appears rather charming and is full of exquisite chandeliers,
wooden tables and chairs, rooms to store fine linens, well-equipped “get-ready rooms” for the
wedding parties, and more.
5 Contrary to Plaintiffs assertion, the Structure is not a long-existing “barn” that was
“renovated” in 2021 to accommodate agritourism activities. Rather, the evidence clearly
demonstrates that the Structure is a new structure constructed in 2021, and intended primarily to
house, shelter, transport, or otherwise accommodate members of the general public.
6 An affidavit authenticating and containing official aerials of the Subject Property
taken and maintained by the Okeechobee County Property Appraiser is attached hereto as
Composite Exhibit B. The 2020 Aerial, marked as Attachment 1 to the affidavit, clearly
demonstrates that at some time between February 20, 2020 and May 4, 2020, a barn existed on the
Subject Property. The January 2021 Aerial, marked as Attachment 2 to the affidavit, clearly
demonstrates that as of January 5, 2021, at 12:30 PM, the prior barn had been completely removed,
to be replaced with the beginning posts and beams of a new structure, oriented for a roof truss
structure rotated 90 degrees from the prior barn. The December 2021 Aerial, marked as
Attachment 3 to the affidavit, depicts the new Structure as of December 21, 2022, at 11:27 AM,
with its roof structure rotated 90 degrees from the prior barn.
7 Interestingly, the December 2021 Aerial depicts the new Structure complete with an
outdoor ceremony space for couples to be wed, which was taken nearly a week afier Plaintiff
submitted a Building Permit Exemption Affidavit averring under oath that the use of structure was
“storing hay, feed, stock trailers, equipment, and other necessary agriculture equipment”, while
omitting any reference to use as a wedding venue or for alleged agritourism activities (as detailed
in paragraphs 8-12 below).
THE BUILDING PERMIT EXEMPTION AFFIDAVIT
8 On or about December 14, 2021, Plaintiff submitted a Building Permit Exemption
Affidavit (the “Exemption Affidavit”) to the County Building Department, seeking a letter from the
County Building Official classifying the Structure as a “non-residential farm building” as defined
in Section 604.50, Florida Statutes. Plaintiff submitted with the Exemption Affidavit, an agricultural
classification letter for the Subject Property dated November 17, 2021 from the Okeechobee County
Property Appraiser (“Property Appraiser”), and a “site plan” depicting the general location of the
Structure on the Subject Property. A copy of the Exemption Affidavit executed by Plaintiffs
Manager, Mr. Phil Pustejovsky (“Mr. Pustejovsky”), together with the Property Appraiser letter and
site plan (a total of three pages submitted), is attached hereto as Composite Exhibit C.
9 The Exemption Affidavit, submitted mere weeks before Plaintiff admits that it
began using the Structure as a wedding venue, avers that the type of structure is “Pole Barn”, and
that the use of structure is “storing hay, feed, stock trailers, equipment, and other necessary
agriculture equipment.” See Composite Exhibit C. Nowhere in the Exemption Affidavit did
Plaintiff disclose or indicate that the Structure would be used as a wedding venue, or for alleged
agritourism activities.
10. No photographs of the Structure were ever submitted to, and no site visit or
inspection was conducted by, the County Building Department with respect to Plaintiff's request
for classification of the Structure as a “non-residential farm building”.
11. Based upon the representations in Plaintiff's three-page submittal, including the
sworn affidavit averring that the use of structure was “storing hay, feed, stock trailers, equipment,
and other necessary agriculture equipment”, while omitting any reference to use as a wedding venue
or for alleged agritourism activities, the Building Official issued “Building Permit Exemption
#BP2112-0135 — Construct pole barn for hay, feed, trailers, etc.” dated December 28, 2021 (the
“Exemption Letter”), a copy of which is attached hereto as Exhibit D.
12. In light of the submission of the Exemption Affidavit on December 14, 2021, mere
weeks before the commencement of wedding venue operations at the Structure in February 2022,
it appears that the Plaintiff made intentional misrepresentations of material fact, including failing
to disclose and omitting information from the Exemption Affidavit, in order to conceal the intended
use of the Structure as a wedding venue, or even as an alleged agritourism activity, in order to
procure an exemption letter from the County, and the County relied on such information in issuing
the Exemption Letter.!
) Based on the foregoing, and contrary to Plaintiff’s position, the County asserts that the last peaceable, non-contested
condition that preceded the instant controversy was the status of the Structure absent the submission of Plaintiff's
Exemption Affidavit and the issuance of the Code Compliance Department’s December 28, 2021, letter accepting
Plaintiff's Exemption Affidavit.
PROPERTY APPRAISER’S 2022 DENIAL OF
AGRICULTURAL CLASSIFICATION FOR THE STRUCTURE
13. Plaintiff submitted an application for renewal of the Property Appraiser’s
agricultural classification of the Subject Property for the 2022 tax year. Upon investigation and
after inspections of the Subject Property, including the Structure, the Property Appraiser denied
agricultural classification to the Structure.
14. The Plaintiff appealed the Property Appraiser’s denial of agricultural classification
for the Structure to the Okeechobee County Value Adjustment Board. On November 8, 2022, the
Value Adjustment Board held a hearing on the petition, at which the Property Appraiser presented
the PowerPoint presentation attached hereto as Attachment 4 to Composite Exhibit B, providing
information upon which he made his determination. At that hearing, the Value Adjustment Board
voted unanimously to deny the petition and uphold the denial of agricultural classification for the
Structure. See Decision of Value Adjustment Board dated November 8, 2022 attached hereto as
Exhibit E.
LETTER FROM THE GENERAL COUNSEL FOR THE
FLORIDA DEPARTMENT OF AGRICULTURE AND CONSUMER SERVICES
15. On November 2, 2022, Plaintiff apparently received a letter from the general counsel
for the Florida Department of Agriculture and Consumer Services (“FDACS”) concerning an
informal and non-binding legal opinion, nominally rendered to assist in resolving a conflict between
Plaintiff and the Property Appraisers for both Okeechobee County and Martin County (the “FDACS
Letter”). A true and correct copy of the FDACS Letter is attached hereto as Exhibit F. Plaintiff
claims that the FDACS Letter “declared Plaintiff's operations to be in compliance with the State’s
agritourism statutes.” See Pl’s Complaint at { 17.
16. Such claims are unsupported by law and the plain language of the FDACS Letter
itself. First, the issue presented to the general counsel was narrowly related to whether
improvements to a non-residential farm building to improve the building’s ability to serve
agritourism purposes being used to “justify the removal or denial of an agricultural classification
pursuant to Section 193.461, Florida Statutes.” See Exhibit F. Such an issue (when viewed alone
as is the case in the FDACS Letter) is inapplicable to the legal and factual analyses before the Court
related to the County’s regulatory authority to classify and regulate the Structure. As is stated in the
FDACS Letter itself,
“For example, I was provided photographs indicating that chandeliers, drapery, and
new flooring had been added to the barns. I understand the ease it takes to reach this
conclusion; however, I am concerned, with the precedent that a Greenbelt
classification may be denied because of inferences drawn.
rather than through an investigation into the building’s actual primary use....
While buildings with these types of improvements might not resemble a traditional
farm building neither do modern vertical farming... So long as the buildings
continue to be used primarily for agriculture purposes, they should be entitled to a
Greenbelt classification...”
See Exhibit F (emphasis added). Although not directly applicable to the instant case, the FDACS
Letter makes clear that a County’s factual evaluation of a structure’s actual and primary use is the
determinative factor in assessing whether a structure is exempt from local regulation.
17. To be clear, the County does not deny that weddings can constitute agritourism
activities under the right factual and legal circumstances, as discussed herein. However, the County
completely disagrees with Plaintiff's assertion that use of a structure as a “wedding venue” always
constitutes “agritourism activity,” in all places, at all times, and under all factual and legal
circumstances. Plaintiff's assertion in this regard is entirely unsupported by applicable Florida law.
THE RECENT ENFORCEMENT ACTIONS
18. On or about February 3, 2023, the County Code Compliance Department received a
written complaint concerning the Structure. The complaint requested an investigation into possible
life safety code violations in the Structure, expressing concerns for imminent health hazards to
persons who attend weddings in buildings that do not meet the Florida Fire Prevention Code.
19. Thereafter, representatives of the County Fire Rescue, Building, and Code
Compliance Departments met to discuss the complaint, and decided to have a County representative
contact the Plaintiff to discuss the complaint and the status of the Structure.
20. In February 2023, a Building Department representative called both the corporate
and local telephone numbers listed on Plaintiff's website for its wedding venue business. In both
instances, the calls went to voicemail. The County representative left voicemails advising that she
was with the County, that the County wished to discuss Plaintiffs operations at the Structure, and
to please call her back. She received no calls back from representatives of Plaintiff before calling
again.
21. On March 17, 2023, the County representative called the customer service number
on Plaintiff's website and again left a voicemail. She also sent a text message to the number
requesting that someone return her call concerning the Structure. Later that day, she received a
return voicemail from Timothy Riley, counsel for Plaintiff with the Dean, Mead & Dunbar law
firm.
22. Mr. Riley and undersigned counsel (the “County Attorney”) spoke on March 22 and
March 24, 2023. During those conversations, the County Attorney advised Mr. Riley that the
County had received a complaint concerning the Structure and the activities conducted there, and
that based in part upon information received from the Property Appraiser’s office, including the
PowerPoint presentation attached as Attachment 4 to Composite Exhibit B, the County
questioned Plaintiffs position that the Structure was not required to comply with the Florida Fire
Prevention Code and Florida Building Code.
23. Thereafter, Mr. Riley and the County Attorney arranged a telephone conference held
on March 27, 2023, consisting of representatives of the Fire Rescue, Building, and Code
Compliance Departments, the County Attorney’s Office, and counsel and representatives of
Plaintiff, including Mr. Riley, Mr. Pustejovsky, Plaintiff's Manager, and Jenny Cahoon, manager
of Plaintiff's operations at the Structure.
24. During that telephone conference, representatives of Plaintiff spoke at length with
representatives of the County concerning Plaintiffs position on the history and primary use of the
Structure, and on the reasons why Plaintiff asserted that the Structure was not required to comply
with the Florida Fire Prevention Code and Florida Building Code, and was not excluded from the
statutory definition of “agritourism activity”. Specifically, Mr. Pustejovsky insisted that the
Structure was a renovated barn and not a new structure, and that the Structure was primarily used
for a cow/calf operation.
25. Mr. Riley and the County Attorney also arranged an inspection of the Structure, to
be conducted on Tuesday, March 28, 2023, by Okeechobee County Fire Marshal Justin Hazellief
(the “Fire Marshal”), Okeechobee County Building Official Kevin Throop (the “Building
Official”), and Code Enforcement Supervisor Beth Albert.
26. The aforementioned County officials conducted an inspection of the Structure
accompanied by a representative of Plaintiff, Jenny Cahoon, manager of operations at the Structure.
The Inspection Remarks prepared by the Fire Marshal, attached hereto as Exhibit G, provide a
detailed account of the inspection, including Ms. Cahoon’s answers to various questions relating to
the use and history of the Structure, and are worthy of quoting at length:
“Myself, DFM Jessica Sasser, Building Official Kevin Throop, Jamie Werk, Beth
Albert, Shelby Ritter, and LaKeisha Gilchrist met with Jenny Cahoon, the manager
of the property. Upon entering the structure, it was set up with tables and chairs as a
wedding venue. Seating for guests, family and the bride and groom table were
present and set up. There was seating for approximately 150 persons with room for
more. We toured each room. The storage room was full of wedding venue
decorations and additional tables and chairs. There was a small kitchen area set up
for food distribution and beverages. There was no cooking equipment present. We
noted a posted occupant capacity of 299. The manager stated that the posting was
something that they had made and was not approved by any agency. They posted
that number to stay under 300 persons listed in Statute. There was a room dedicated
for the groom to prepare, a men's restroom, women's restroom, and another room
for the bride and bridesmaids to prepare. There was also an office. Everything in the
office referenced weddings and events. There was nothing that referenced any
agricultural operations. I asked Jenny if the venue was set up as a venue all of the
time and she stated that it was. They do not remove the tables and chairs, only
rearrange them for the different events. She stated that potential customers may
come out before reserving the venue to tour it and want to see it set up as it would
be for the wedding day. She stated that they held their first event in February of
2022. She also stated that the company has been holding wedding venues at their
various locations since 2018.
I asked her to show me what in the building was specific or integral to the
agricultural operation. She stated that there were a few files in the office and the
apiary equipment. She showed us the equipment. It was one small honey extractor,
a bee hood, and smoke pot. It all appeared to be new. I asked her how often they use
this equipment and she stated that it was all brand new and had never been used. She
stated that they had not actually put any of their own bees on the property so they
had not needed the equipment yet. She stated that there was no other equipment or
storage for anything not related to the wedding venue. The Building Official did find
two small bins labeled cow/horse meds in the storage room.
In one of the previous meetings the owners had stated that this was an original pole
barn that was on the property when they bought it and they had done major
renovations. The barn appears to face an entirely different direction than the original.
When asked, Jenny stated that the original barn was torn down and this one was
reconstructed with some of the material from the first one, she was not sure how
much of the material was used. She stated that they had been granted ag exemption
when the barn was built and some time after that they closed it in and made the
improvements to create a venue.
As this visit was an initial visit and intended for classification purposes, We did not
conduct a complete fire safety inspection. There were some obvious violations noted
in our walk-through including uninspected fire extinguishers, inoperable panic
hardware on the doors, improperly placed exit signage. exposed electrical wiring.
and unsecured electrical panels. There was also a noticeable lack of life safety
systems such as fire alarms and sprinkler systems. A complete review of engineered
plans and a full fire safety inspection will still need to be performed.”
27. As referenced above, photographs from the inspection of the Structure are attached
hereto as Composite Exhibit A.
28. After the inspection, the Fire Marshal and Building Official each made
determinations within the scope of their respective authority, and took appropriate action to protect
the health and safety of the public.
FIRE MARSHAL’S FINDINGS AND ACTION
CONCERNING THE STRUCTURE
29. The Fire Marshal, pursuant to his authority to inspect and classify structures alleged
to be used for agritourism activity, found that the Structure is used primarily as a wedding and
meeting venue and is “a structure or facility that is used primarily for housing, sheltering, or
otherwise accommodating members of the general public”. See Correspondence from Fire Marshal
dated March 29, 2023, attached hereto as Exhibit H.
30. As a result, the Fire Marshal found that the Structure is subject to the Florida Fire
Prevention Code. If, as Plaintiff asserts, the Structure is not excluded from the statutory definition
of “agritourism activity” and the use of the Structure as a wedding venue constitutes agritourism
activity, the Structure is nevertheless classified as a “Class 3” structure, which is subject to the
Florida Fire Prevention Code.
31. Alternatively, if the Structure is excluded from the statutory definition of
“agritourism activity” as determined by the Code Compliance Department and the Building
Official, then the Structure is not subject to any other exemption from the requirements of the
Florida Fire Prevention Code, and the Structure is subject to the Florida Fire Prevention Code.
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32. The Fire Marshal also found that from the time the Plaintiff alleges that it started
operating the Structure as a wedding venue (February 2022), through the present, the Plaintiff has
violated Plaintiffs legal obligation to notify the Fire Marshal prior to the use of the Structure for
alleged agritourism activities, thereby artfully avoiding the Fire Marshal’s legally required
classification inspection of the Structure.
33. Based on the fact that the Structure was constructed without any plans review or
permits, was never inspected for the Florida Fire Prevention Code, had no approved occupant load,
had obstructed or substandard means of egress, had no fire protection systems in place (that is, no
required sprinkling and fire alarm systems in place), among other violations, and was
accommodating hundreds of members of the general public a least three days a week, the Fire
Marshal issued and posted a Cease and Desist order for use of the Structure.
BUILDING OFFICIAL’S FINDINGS AND ACTION
CONCERNING THE STRUCTURE
34. The Building Official, pursuant to his authority to enforce, interpret, and classify
structures pursuant to, the Florida Building Code, found that the Structure is “intended primarily to
house, shelter, transport, or otherwise accommodate members of the general public”, that the
Structure is a “new or additional structure[] or facilit[y] 99 ‘construct[ed]” after the passage of Ch.
2013-179, Laws of Florida, and that as a result, the use of the Structure does not satisfy the statutory
definition of “agritourism activity”. See Building Official Inspection Report attached hereto as
Exhibit I.
35. The Building Official further found that the Structure is not appropriately classified
as a nonresidential farm building under Section 553.73(10)(c), Florida Statutes, and that the
structure is not subject to the exemption from the Florida Building Code provided in Section 604.50,
Florida Statutes.
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36. The Building Official further found that his prior classification of the Structure as a
nonresidential farm building was based on inaccurate, misleading, and/or false representations
under oath from Plaintiff, as well as information that was no longer true (as a result of the Property
Appraiser’s revocation of agricultural classification of the Structure), and that as a result, the
Building Official’s prior determination was appropriately revoked and superseded.
37. Based on these findings, and upon the fact that there had been no plans review,
permits, or inspections of the Structure, and the fact that all work had been completed, the Building
Official found that he was unable to conduct a thorough inspection to verify the integrity of the
Structure and the safety of the public, and therefore declared the Structure Unsafe, and posted an
Unsafe Structure placard on the Structure.
38. As discussed herein, Plaintiff does not meet the standard for the entry of a
preliminary temporary injunction. As such, County respectfully requests the Court enter an order
denying Plaintiff's Emergency Motion.
MEMORANDUM OF LAW
I Standard of Review
“{A] preliminary injunction is an extraordinary remedy which should be granted
sparingly...” City of Jacksonville v. Naegele Outdoor Adver. Co., 634 So. 2d 750, 752 (Fla. Ist
DCA 1994) (quoting Thompson v. Planning Comm'n, 464 So. 2d 1231, 1236 (Fla. lst DCA
1985)). To obtain a preliminary injunction, the Plaintiff must demonstrate (1) a substantial
likelihood of success on the merits; (2) irreparable harm absent the entry of an injunction; (3) the
lack of an adequate remedy at law; and (4) that injunctive relief will serve the public
interest. Reform Party of Fla. v. Black, 885 So. 2d 303, 305 (Fla. 2004). “Clear, definite, and
unequivocally sufficient factual findings must support each of these four criteria before the court
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may enter the injunction.” Wade v. Brown, 928 So. 2d 1260, 1261 (Fla. 4th DCA
2006) (quoting Aerospace Welding, Inc. v. Southstream Exhaust & Welding, Inc., 824 So. 2d 226,
227 (Fla. 4th DCA 2002)); see also Machovec v. Palm Beach County, 310 So. 3d 941, 945 (Fla.
4th DCA 2021) (“Ifa party fails to prove one of the requirements, the motion for injunction must
be denied.”).
“(T]he purpose of a temporary injunction is to preserve the status quo pending the final
hearing...” Sacred Family Invs., Inc. v. Doral Supermarket, Inc., 20 So. 3d 412, 417 (Fla. 3d DCA
2009). Moreover, “[t]he status quo preserved by a temporary injunction is the last peaceable
noncontested condition that preceded the controversy.” Bailey v. Christo, 453 So. 2d 1134, 1137
(Fla. 1st DCA 1984) (citing Bowling v. Nat'l Convoy & Trucking Co., 101 Fla. 634, 135 So. 541
(1931)) (emphasis added). “Although a trial court has broad discretion in granting injunctive relief,
it is an extraordinary remedy that requires a clear legal right, free from reasonable
doubt.” Meritplan Ins. Co. v. Perez, 963 So, 2d 771, 776 (Fla. 3d DCA 2007).
Il. Summary of Argument
Plaintiff utterly fails to meet the standard for the entry of a preliminary temporary
injunction. First, Plaintiff fails to demonstrate that it has a substantial likelihood of success on the
merits of the instant suit. Plaintiff oversimplifies the legal and factual analysis required for the
Court to decide whether Plaintiff has a substantial likelihood of success on the merits of the instant
suit. Even if Plaintiff’s Emergency Motion contained the required factual and legal analysis
required, the County’s evidence and legal argument makes clear that Plaintiff does not have a
substantial likelihood of success on the merits of the instant suit. Next, Plaintiff cannot show that
it will suffer irreparable harm absent the entry of a preliminary injunction, and impermissibly
attempts to join the damages suffered by “Plaintiff’s patrons” to overcome that fact. To the same,
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the damages alleged by Plaintiff that are properly before the Court could be obtained in a
proceeding at law. Finally, the entry of a preliminary injunction here will not serve the public
interest. Rather, such action would stymie the efforts of the County to protect the hundreds of folks
that are, unbeknownst to them, using the unpermitted, uninspected, and non-complaint structure
every week as a wedding venue.
Til. Argument
A. Plaintiff Failed to Demonstrate that it has a Substantial Likelihood of Success
on the Merits of the Instant Suit
Plaintiff must prove by clear, definite, and unequivocally sufficient factual findings that it
has a substantial likelihood of success on the merits in the instant suit. See Black, 885 So. 2d at
305; Brown, 928 So. 2d at 1261. A substantial likelihood of success on the merits is shown if good
reasons for anticipating that result are demonstrated. See City of Fort Lauderdale v. Canary
Enterprises, Inc., 546 So. 2d 1114, 1117 (Fla. 4th DCA 1989). This requires the Plaintiff to
demonstrate a “clear legal right,” with proof to a reasonable certainty of success on the merits, to
demonstrate that Plaintiff has a substantial likelihood of success on the merits of the instant suit.
Id.; Zimmerman y. D.C.A, at Welleby, Inc., 505 So. 2d 1371, 1373 (Fla. 4th DCA 1987).
Plaintiff has failed to demonstrate a “clear legal right” supported by clear, definite, and
unequivocally sufficient factual findings that the Plaintiff has a substantial likelihood of success
on the merits in the instant suit. Primarily, Plaintiff oversimplifies, and to an extent misstates the
legal analysis and factual determinations required for this Court to render a decision as to
Plaintiff’s Count I for Declaratory Relief in Plaintiff's Emergency Motion. See Pl’s Emergency
Motion at {fj 13-15. The analysis below fleshes out and applies the complex web of law required
for the Court to fully understand the issues concerning the Structure’s appropriate classification
and status, and the legal basis for the County’s actions concerning the Structure.
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1. The Structure is Excluded from Definition of “Agritourism Activity”
Contrary to Plaintiff's assertions, the Structure is excluded from the definition of
“agritourism activity” based on the definition contained in Section 570.86(1), Florida Statutes,
which is defined as follows:
qd) “Agritourism activity” means any agricultural related activity consistent with
a bona fide farm, livestock operation, or ranch or in a working forest which allows
members of the general public, for recreational, entertainment, or educational
purposes, to view or enjoy activities, including farming, ranching, historical,
cultural, civic, ceremonial, training and exhibition, or harvest-your-own activities
and attractions. An agritourism activity does not include the construction of new or
additional structures or facilities intended primarily to house, shelter, transport, or
otherwise_accommodate_members_of the eneral ublic. An activity is an
agritourism activity regardless of whether the participant paid to participate in the
activity.
(emphasis added). Chapter 2013-179, Laws of Florida, amended Section 570.86(1), Florida
Statutes, in 2013 to add the underlined exclusion from the definition of “agritourism activity”. See
Ch. 2013-179, Laws of Florida. In a recent opinion advising a county as the county’s determination
of whether an activity constituted “agritourism activity” under the statute, the Office of the
Attorney General interpreted this exclusion to find that:
[P]art of the County's regulatory decision requires it to ascertain whether there are
any structures built after 2013 (the year in which this part of the statute was enacted,
see ch. 2013-179, §2, Laws of Fla.) that constitute "new or additional structures or
facilities intended primarily to house, shelter, transport, or otherwise accommodate
members of the general public," because such structures are excluded from the
definition of "agritourism activity." § 570.86, Fla. Stat. (2021). In making this
additional determination, the County may, similarly, consider, but not exclusively
rely upon, the appraiser's classification of those structures (here, as nonagricultural)
and the information underlying that determination.
Informal Op. Att'y Gen. Fla., February 16, 2022, n. 27.
The evidence before the Court clearly demonstrates that the Structure is a new structure
and not a “renovated” structure, and that the Structure is intended primarily to house, shelter,
transport, or otherwise accommodate members of the general public.
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The 2020 Aerial, marked as Attachment 1 to the affidavit attached as Exhibit B, clearly
demonstrates that at some time between February 20, 2020 and May 4, 2020, a barn existed on the
Subject Property. The January 2021 Aerial, marked as Attachment 2 to the affidavit, clearly
demonstrates that as of January 5, 2021, at 12:30 PM, the prior barn had been completely removed,
to be replaced with the beginning posts and beams of a new structure, oriented for a roof truss
structure rotated 90 degrees from the prior barn. The December 2021 Aerial, marked as
Attachment 3 in the affidavit, depicts the new Structure as of December 21, 2022, at 11:27 AM,
with its roof structure rotated 90 degrees from the prior barn.
Interestingly, the December 2021 Aerial depicts the new Structure complete with an
outdoor ceremony space for couples to be wed, which was taken nearly a week after Plaintiff
submitted its Building Permit Exemption Affidavit averring under oath that the use of structure
was “storing hay, feed, stock trailers, equipment, and other necessary agriculture equipment”,
while omitting any reference to use as a wedding venue or for alleged agritourism activities.
As detailed in the Fire Marshal’s Inspection Remarks at Exhibit E and the inspection
photographs at Composite Exhibit A, the evidence is clear that the primary use of the Structure is
as a wedding and meeting venue, and that the Structure is “intended primarily to house, shelter,
transport, or otherwise accommodate members of the general public.”
2. Legal Basis for Fire Marshal’s Determinations
Contrary to Plaintiff’s assertions, the Fire Marshal’s determination that the Structure is
subject to the Florida Fire Prevention Code is not logically dependent upon: (1) the Building
Official’s determination that the Structure is not appropriately classified as a nonresidential farm
building under Section 553.73(10)(c), Florida Statutes; (2) the Building Official’s determination
that the Structure is not subject to the exemption from the Florida Building Code provided in
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Section 604.50, Florida Statutes; or (3) the Building Official’s determination that the Structure
does not satisfy the statutory definition of “agritourism activity”, based upon the exclusion added
to the definition by Chapter 2013-179, Laws of Florida.
Rather, based upon his inspection of the Structure on March 28, 2023, as well as the
additional information provided by representatives of Plaintiff on both March 27 and 28, 2023, the
Fire Marshal made a determination that the Structure is used primarily as a wedding and meeting
venue and is “a structure or facility that is used primarily for housing, sheltering, or otherwise
accommodating members of the general public”, otherwise consistent with the definition for a
“Class 3” structure as set forth in Section 633.202(16)(b)(3)(c), Florida Statutes.
Section 633.202(16), Florida Statutes, provides in pertinent part:
“633.202 Florida Fire Prevention Code.
(16)(a) As used in this subsection, the term:
1 “Agricultural pole barn” means a nonresidential farm building in
which 70 percent or more of the perimeter walls are permanently
open and allow free ingress and egress.
“Nonresidential farm building” has the same meaning as provided
in s. 604.50.
(b) Notwithstanding any other provision of law:
1 Anonresidential farm building in which the occupancy is limited by
the property owner to no more than 35 persons is exempt from the
Florida Fire Prevention Code, including the national codes and Life
Safety Code incorporated by reference.
An agricultural pole barn is exempt from the Florida Fire Prevention
Code, including the national codes and the Life Safety Code
incorporated by reference.
Except for an agricultural pole barn, a structure on a farm, as defined
in s. 823.14(3)(c), which is used by an owner for_agritourism
activity, as defined in_s. 570.86, for which the owner receives
consideration must be classified in one of the following classes:
17
Class 1: A nonresidential farm building that is used by the
owner 12 or fewer times per year for agritourism activity
with up to 100 persons occupying the structure at one time.
A structure in this class is subject to annual inspection for
classification by the local authority having jurisdiction. This
class is not subject to the Florida Fire Prevention Code but
is subject to rules adopted by the State Fire Marshal pursuant
to this section.
Class 2: A nonresidential farm building that is used by the
owner for agritourism activity with up to 300 persons
occupying the structure at one time. A structure in this class
is subject to annual inspection for classification by the local
authority having jurisdiction. This class is not subject to the
Florida Fire Prevention Code but is subject to rules adopted
by the State Fire Marshal pursuant to this section.
Class 3: A_ structure or facility that is_used primarily for
housing, sheltering, or otherwise accommodating member:
of the general public. A structure or facility in this class is
subject to annual inspection for classification by the local
authority having jurisdiction. This class is_subject to_the
Florida Fire Prevention Code.
(c) The State Fire Marshal shall adopt rules to administer this section,
including, but not limited to:
1 The use of alternative life safety and fire prevention standards for
structures in Classes 1 and 2;
Notification and inspection requirements for structures in Classes 1
and 2;
The application of the Florida Fire Prevention Code for structures
in Class 3; and
Any other standards or rules deemed necessary in order to facilitate
the use of structures for agritourism activities.”
(Emphasis added).
18
As explained in his letter dated March 29, 2023, and vital to the Court’s analysis here, the
Fire Marshal found that the Structure is subject to the Florida Fire Prevention Code regardless of
whether the use of the Structure satisfies the definition of “agritourism activity”.
If, as Plaintiff asserts, the Structure is not excluded from the statutory definition of
“agritourism activity” and the use of the Structure as a wedding venue under the unique facts of
this Structure constitutes agritourism activity, the Structure is nevertheless classified as a “Class
3” structure, which is subject to the Florida Fire Prevention Code.
Alternatively, if the Structure is excluded from the statutory definition of “agritourism
activity” as determined by the Code Compliance Department and the Building Official, then the
Structure is not subject to any other exemption from the requirements of the Florida Fire
Prevention Code, and thus the Structure is subject to the Florida Fire Prevention Code.
Pursuant to Rule 69A-67.004, F.A.C., adopted pursuant to the authority of Section
633.202(16)(c), Florida Statutes, the owner of a nonresidential farm building that proposes to use
such building as a Class 1, 2, or 3 building for agritourism activities is required to notify the
Authority Having Jurisdiction (“AHJ” — in Okeechobee County, the Fire Marshal), prior to the use
of such facility. From February 2022, the time Plaintiff admits that it began using the Structure as
a wedding venue, through the time County officials contacted representatives of Plaintiff in March
2023, Plaintiff never_notified the Fire Marshal that it intended to use the structure for
gritourism activities.
As a result, the Fire Marshal also found that from the time the Plaintiff alleges that it started
operating the Structure as a wedding venue (February 2022), through the present, the Plaintiff has
violated Plaintiff’s legal obligation to notify the Fire Marshal prior to the use of the Structure for
19
alleged agritourism activities, thereby artfully avoiding the Fire Marshal’s legally required
classification inspection of the Structure.
Based on the fact that the Structure was constructed without any plans review or permits,
was never inspected for the Florida Fire Prevention Code, had no approved occupant load, had
obstructed or substandard means of egress, had no fire protection systems in place (that is, no
required sprinkling and fire alarm systems in place), among other violations, and was
accommodating hundreds of members of the general public a least three days a week, the Fire
Marshal issued and posted a Cease and Desist order for use of the Structure.
3. Legal Basis for Building Official’s Determinations
The Building Official, pursuant to his authority to enforce, interpret, and classify structures
pursuant to, the Florida Building Code, and based upon his inspection of the Structure on March
28, 2023, additional information provided by representatives of Plaintiff on both March 27 and 28,
2023, and information provided by the Property Appraiser, found that the Structure is “intended
primarily to house, shelter, transport, or otherwise accommodate members of the general public”,
that the Structure is a “new or additional structure[] or facilit[y] >> «6 construct[ed]” after the passage
of Chapter 2013-179, Laws of Florida, and that as a result, the use of the Structure does not satisfy
the statutory definition of “agritourism activity”. See infra at pg. 14-15.
The Building Official further found that the Structure is not appropriately classified as a
nonresidential farm building under Sec. 553.73(10)(c), Fla. Stat., and that the structure is not
subject to the exemption from the Florida Building Code provided in Sec. 604.50, Fla. Stat.
Section 604.50(1), Florida Statutes, provides in pertinent part:
a) Notwithstanding any provision of law to the contrary, any nonresidential farm
building... that is located on lands used for bona fide agricultural purposes, not
including those lands used for urban agriculture, is exempt from the Florida
20
Building Code and any county or municipal code or fee, except for code provisions
implementing local, state, or federal floodplain management regulations.
Section 604.50(2)(d), Florida Statutes, provides a definition of “nonresidential farm
building” as used in the section, which can broken down into the following elements:
(d) “Nonresidential farm building” means:
(Element 1) any temporary or permanent building or support structure
(Element 2a) that is classified as a nonresidential farm building on a farm under
s. 553.73(10)(c) or
(Element 2b) that is used primarily for agricultural purposes,
(Element 3a) is located on land that is an integral part of a farm operation or
(Element 3b) is classified as agricultural land under s. 193.461,
(Element 4) and is not intended to be used as a residential dwelling.
(Element 5) The term may include, but is not limited to, a barn, greenhouse,
shade house, farm office, storage building, or poultry house.
The Building Official found that both Element 2 and Element 3 of this definition are not
satisfied with respect to the Structure.
As to Element 2a, Section 553.73(10)(c), Florida Statutes, provides in pertinent part:
553.73 Florida Building Code.
(10) The following buildings, structures, and facilities are exempt from the Florida
Building Code as provided by law, and any further exemptions shall be as
determined by the Legislature and provided by law:
© Nonresidential farm buildings on farms.
The same exemption is specified in Section 102.2, 2020 Florida Building Code, Building,
7th Edition’. Pursuant to his authority to enforce, interpret, and classify structures pursuant to, the
? 102.2 Building.
The provisions of the Florida Building Code shall apply to the construction, erection, alteration, modification, repair,
equipment, use and occupancy, location, maintenance, removal and demolition of every public and private building,
structure or facility or floating residential structure, or any appurtenances connected or attached to such buildings,
structures or facilities. Additions, alterations, repairs and changes of use or occupancy group in all buildings and
structures shall comply with the provisions provided in the Florida Building Code, Existing Building. The following
buildings, structures and facilities are exempt from the Florida Building Code as provided by law, and any further
exemptions shall be as determined by the legislature and provided by law:
()Nonresidential farm buildings on farms.
21
Florida Building Code, and based on the information discussed above, the Building Official found
that the Structure is not appropriately classified as a nonresidential farm building on a farm under
Section 553.73(10)(c), Florida Statutes.
As to Element 2b, based on the information discussed above, the Building Official found
that the Structure is not “used primarily for agricultural purposes”.
As to Element 3a, based on the information discussed above, the Building Official found
that the Structure is not “located on land that is an integral part of a farm operation”.
As to Element 3b, based on the Property Appraiser’s 2022 denial of agricultural
classification for the Structure, and the Value Adjustment Bo
Preview
Filing # 170423995 E-Filed 04/05/2023 03:42:47 PM IN THE CIRCUIT COURT OF THE NINETEENTH JUDICIAL CIRCUIT IN AND FOR OKEECHOBEE COUNTY, FLORIDA CATTLE RANCH HOLDINGS, LLC, a Florida limited liability company, Plaintiff, Vv. Case No. 2023-CA-000185 RALPH FRANKLIN, as Public Safety Director/Fire Chief for the OKEECHOBEE COUNTY FIRE RESCUE and the OKEECHOBEE COUNTY BOARD OF COUNTY COMMISSIONERS, Defendants. / DEFENDANTS’ MEMORANDUM IN OPPOSITION TO PLAINTIFF’S EMERGENCY MOTION FOR PRELIMINARY INJUNCTION COME NOW Defendants, the OKEECHOBEE COUNTY BOARD OF COUNTY COMMISSIONERS and OKEECHOBEE COUNTY FIRE RESCUE (hereinafter collectively, the “County”), by and through the undersigned counsel and pursuant to Rule 1.610, Florida Rules of Civil Procedure, respectfully request that the Court deny the relief requested by Plaintiff, CATTLE RANCH HOLDINGS, LLC, in its Emergency Motion for Preliminary Injunction and Incorporated Memorandum of Law (“Emergency Motion”), and as grounds therefore state the following: INTRODUCTION 1 The County files this memorandum in opposition to Plaintiff's Emergency Motion, as the factual and legal assertions set out in Plaintiff's Complaint and Emergency Motion utterly fail to meet the standard for the entry of a preliminary injunction. 2. As more fully set forth herein, after repeated communications with Plaintiffs representatives, and after inspection of the Structure (as defined herein), County representatives Electronically Filed Okeechobee Case # 2023000185CAAXMX 04/05/2023 03:42:47 PM found that the Structure was required to, but did not, comply with the Florida Fire Prevention Code and Florida Building Code, and took appropriate action to protect the health and safety of the public. FACTUAL BACKGROUND THE STRUCTURE 3 Plaintiff is the owner of real property located at 8900 NE 12th Lane, Okeechobee, Florida 34972 (the “Subject Property”) that is located within the County’s jurisdiction. At all times material to the instant lawsuit, the County had the legal authority to make the determinations and take the resulting enforcement actions described herein. 4 The Subject Property contains a structure that Plaintiff uses as a full-time wedding venue (the “Structure”). The Structure is the subject of County’s enforcement actions at the Subject Property. Photographs of the Structure are attached hereto as Composite Exhibit A. As these photographs depict, the Structure appears rather charming and is full of exquisite chandeliers, wooden tables and chairs, rooms to store fine linens, well-equipped “get-ready rooms” for the wedding parties, and more. 5 Contrary to Plaintiffs assertion, the Structure is not a long-existing “barn” that was “renovated” in 2021 to accommodate agritourism activities. Rather, the evidence clearly demonstrates that the Structure is a new structure constructed in 2021, and intended primarily to house, shelter, transport, or otherwise accommodate members of the general public. 6 An affidavit authenticating and containing official aerials of the Subject Property taken and maintained by the Okeechobee County Property Appraiser is attached hereto as Composite Exhibit B. The 2020 Aerial, marked as Attachment 1 to the affidavit, clearly demonstrates that at some time between February 20, 2020 and May 4, 2020, a barn existed on the Subject Property. The January 2021 Aerial, marked as Attachment 2 to the affidavit, clearly demonstrates that as of January 5, 2021, at 12:30 PM, the prior barn had been completely removed, to be replaced with the beginning posts and beams of a new structure, oriented for a roof truss structure rotated 90 degrees from the prior barn. The December 2021 Aerial, marked as Attachment 3 to the affidavit, depicts the new Structure as of December 21, 2022, at 11:27 AM, with its roof structure rotated 90 degrees from the prior barn. 7 Interestingly, the December 2021 Aerial depicts the new Structure complete with an outdoor ceremony space for couples to be wed, which was taken nearly a week afier Plaintiff submitted a Building Permit Exemption Affidavit averring under oath that the use of structure was “storing hay, feed, stock trailers, equipment, and other necessary agriculture equipment”, while omitting any reference to use as a wedding venue or for alleged agritourism activities (as detailed in paragraphs 8-12 below). THE BUILDING PERMIT EXEMPTION AFFIDAVIT 8 On or about December 14, 2021, Plaintiff submitted a Building Permit Exemption Affidavit (the “Exemption Affidavit”) to the County Building Department, seeking a letter from the County Building Official classifying the Structure as a “non-residential farm building” as defined in Section 604.50, Florida Statutes. Plaintiff submitted with the Exemption Affidavit, an agricultural classification letter for the Subject Property dated November 17, 2021 from the Okeechobee County Property Appraiser (“Property Appraiser”), and a “site plan” depicting the general location of the Structure on the Subject Property. A copy of the Exemption Affidavit executed by Plaintiffs Manager, Mr. Phil Pustejovsky (“Mr. Pustejovsky”), together with the Property Appraiser letter and site plan (a total of three pages submitted), is attached hereto as Composite Exhibit C. 9 The Exemption Affidavit, submitted mere weeks before Plaintiff admits that it began using the Structure as a wedding venue, avers that the type of structure is “Pole Barn”, and that the use of structure is “storing hay, feed, stock trailers, equipment, and other necessary agriculture equipment.” See Composite Exhibit C. Nowhere in the Exemption Affidavit did Plaintiff disclose or indicate that the Structure would be used as a wedding venue, or for alleged agritourism activities. 10. No photographs of the Structure were ever submitted to, and no site visit or inspection was conducted by, the County Building Department with respect to Plaintiff's request for classification of the Structure as a “non-residential farm building”. 11. Based upon the representations in Plaintiff's three-page submittal, including the sworn affidavit averring that the use of structure was “storing hay, feed, stock trailers, equipment, and other necessary agriculture equipment”, while omitting any reference to use as a wedding venue or for alleged agritourism activities, the Building Official issued “Building Permit Exemption #BP2112-0135 — Construct pole barn for hay, feed, trailers, etc.” dated December 28, 2021 (the “Exemption Letter”), a copy of which is attached hereto as Exhibit D. 12. In light of the submission of the Exemption Affidavit on December 14, 2021, mere weeks before the commencement of wedding venue operations at the Structure in February 2022, it appears that the Plaintiff made intentional misrepresentations of material fact, including failing to disclose and omitting information from the Exemption Affidavit, in order to conceal the intended use of the Structure as a wedding venue, or even as an alleged agritourism activity, in order to procure an exemption letter from the County, and the County relied on such information in issuing the Exemption Letter.! ) Based on the foregoing, and contrary to Plaintiff’s position, the County asserts that the last peaceable, non-contested condition that preceded the instant controversy was the status of the Structure absent the submission of Plaintiff's Exemption Affidavit and the issuance of the Code Compliance Department’s December 28, 2021, letter accepting Plaintiff's Exemption Affidavit. PROPERTY APPRAISER’S 2022 DENIAL OF AGRICULTURAL CLASSIFICATION FOR THE STRUCTURE 13. Plaintiff submitted an application for renewal of the Property Appraiser’s agricultural classification of the Subject Property for the 2022 tax year. Upon investigation and after inspections of the Subject Property, including the Structure, the Property Appraiser denied agricultural classification to the Structure. 14. The Plaintiff appealed the Property Appraiser’s denial of agricultural classification for the Structure to the Okeechobee County Value Adjustment Board. On November 8, 2022, the Value Adjustment Board held a hearing on the petition, at which the Property Appraiser presented the PowerPoint presentation attached hereto as Attachment 4 to Composite Exhibit B, providing information upon which he made his determination. At that hearing, the Value Adjustment Board voted unanimously to deny the petition and uphold the denial of agricultural classification for the Structure. See Decision of Value Adjustment Board dated November 8, 2022 attached hereto as Exhibit E. LETTER FROM THE GENERAL COUNSEL FOR THE FLORIDA DEPARTMENT OF AGRICULTURE AND CONSUMER SERVICES 15. On November 2, 2022, Plaintiff apparently received a letter from the general counsel for the Florida Department of Agriculture and Consumer Services (“FDACS”) concerning an informal and non-binding legal opinion, nominally rendered to assist in resolving a conflict between Plaintiff and the Property Appraisers for both Okeechobee County and Martin County (the “FDACS Letter”). A true and correct copy of the FDACS Letter is attached hereto as Exhibit F. Plaintiff claims that the FDACS Letter “declared Plaintiff's operations to be in compliance with the State’s agritourism statutes.” See Pl’s Complaint at { 17. 16. Such claims are unsupported by law and the plain language of the FDACS Letter itself. First, the issue presented to the general counsel was narrowly related to whether improvements to a non-residential farm building to improve the building’s ability to serve agritourism purposes being used to “justify the removal or denial of an agricultural classification pursuant to Section 193.461, Florida Statutes.” See Exhibit F. Such an issue (when viewed alone as is the case in the FDACS Letter) is inapplicable to the legal and factual analyses before the Court related to the County’s regulatory authority to classify and regulate the Structure. As is stated in the FDACS Letter itself, “For example, I was provided photographs indicating that chandeliers, drapery, and new flooring had been added to the barns. I understand the ease it takes to reach this conclusion; however, I am concerned, with the precedent that a Greenbelt classification may be denied because of inferences drawn. rather than through an investigation into the building’s actual primary use.... While buildings with these types of improvements might not resemble a traditional farm building neither do modern vertical farming... So long as the buildings continue to be used primarily for agriculture purposes, they should be entitled to a Greenbelt classification...” See Exhibit F (emphasis added). Although not directly applicable to the instant case, the FDACS Letter makes clear that a County’s factual evaluation of a structure’s actual and primary use is the determinative factor in assessing whether a structure is exempt from local regulation. 17. To be clear, the County does not deny that weddings can constitute agritourism activities under the right factual and legal circumstances, as discussed herein. However, the County completely disagrees with Plaintiff's assertion that use of a structure as a “wedding venue” always constitutes “agritourism activity,” in all places, at all times, and under all factual and legal circumstances. Plaintiff's assertion in this regard is entirely unsupported by applicable Florida law. THE RECENT ENFORCEMENT ACTIONS 18. On or about February 3, 2023, the County Code Compliance Department received a written complaint concerning the Structure. The complaint requested an investigation into possible life safety code violations in the Structure, expressing concerns for imminent health hazards to persons who attend weddings in buildings that do not meet the Florida Fire Prevention Code. 19. Thereafter, representatives of the County Fire Rescue, Building, and Code Compliance Departments met to discuss the complaint, and decided to have a County representative contact the Plaintiff to discuss the complaint and the status of the Structure. 20. In February 2023, a Building Department representative called both the corporate and local telephone numbers listed on Plaintiff's website for its wedding venue business. In both instances, the calls went to voicemail. The County representative left voicemails advising that she was with the County, that the County wished to discuss Plaintiffs operations at the Structure, and to please call her back. She received no calls back from representatives of Plaintiff before calling again. 21. On March 17, 2023, the County representative called the customer service number on Plaintiff's website and again left a voicemail. She also sent a text message to the number requesting that someone return her call concerning the Structure. Later that day, she received a return voicemail from Timothy Riley, counsel for Plaintiff with the Dean, Mead & Dunbar law firm. 22. Mr. Riley and undersigned counsel (the “County Attorney”) spoke on March 22 and March 24, 2023. During those conversations, the County Attorney advised Mr. Riley that the County had received a complaint concerning the Structure and the activities conducted there, and that based in part upon information received from the Property Appraiser’s office, including the PowerPoint presentation attached as Attachment 4 to Composite Exhibit B, the County questioned Plaintiffs position that the Structure was not required to comply with the Florida Fire Prevention Code and Florida Building Code. 23. Thereafter, Mr. Riley and the County Attorney arranged a telephone conference held on March 27, 2023, consisting of representatives of the Fire Rescue, Building, and Code Compliance Departments, the County Attorney’s Office, and counsel and representatives of Plaintiff, including Mr. Riley, Mr. Pustejovsky, Plaintiff's Manager, and Jenny Cahoon, manager of Plaintiff's operations at the Structure. 24. During that telephone conference, representatives of Plaintiff spoke at length with representatives of the County concerning Plaintiffs position on the history and primary use of the Structure, and on the reasons why Plaintiff asserted that the Structure was not required to comply with the Florida Fire Prevention Code and Florida Building Code, and was not excluded from the statutory definition of “agritourism activity”. Specifically, Mr. Pustejovsky insisted that the Structure was a renovated barn and not a new structure, and that the Structure was primarily used for a cow/calf operation. 25. Mr. Riley and the County Attorney also arranged an inspection of the Structure, to be conducted on Tuesday, March 28, 2023, by Okeechobee County Fire Marshal Justin Hazellief (the “Fire Marshal”), Okeechobee County Building Official Kevin Throop (the “Building Official”), and Code Enforcement Supervisor Beth Albert. 26. The aforementioned County officials conducted an inspection of the Structure accompanied by a representative of Plaintiff, Jenny Cahoon, manager of operations at the Structure. The Inspection Remarks prepared by the Fire Marshal, attached hereto as Exhibit G, provide a detailed account of the inspection, including Ms. Cahoon’s answers to various questions relating to the use and history of the Structure, and are worthy of quoting at length: “Myself, DFM Jessica Sasser, Building Official Kevin Throop, Jamie Werk, Beth Albert, Shelby Ritter, and LaKeisha Gilchrist met with Jenny Cahoon, the manager of the property. Upon entering the structure, it was set up with tables and chairs as a wedding venue. Seating for guests, family and the bride and groom table were present and set up. There was seating for approximately 150 persons with room for more. We toured each room. The storage room was full of wedding venue decorations and additional tables and chairs. There was a small kitchen area set up for food distribution and beverages. There was no cooking equipment present. We noted a posted occupant capacity of 299. The manager stated that the posting was something that they had made and was not approved by any agency. They posted that number to stay under 300 persons listed in Statute. There was a room dedicated for the groom to prepare, a men's restroom, women's restroom, and another room for the bride and bridesmaids to prepare. There was also an office. Everything in the office referenced weddings and events. There was nothing that referenced any agricultural operations. I asked Jenny if the venue was set up as a venue all of the time and she stated that it was. They do not remove the tables and chairs, only rearrange them for the different events. She stated that potential customers may come out before reserving the venue to tour it and want to see it set up as it would be for the wedding day. She stated that they held their first event in February of 2022. She also stated that the company has been holding wedding venues at their various locations since 2018. I asked her to show me what in the building was specific or integral to the agricultural operation. She stated that there were a few files in the office and the apiary equipment. She showed us the equipment. It was one small honey extractor, a bee hood, and smoke pot. It all appeared to be new. I asked her how often they use this equipment and she stated that it was all brand new and had never been used. She stated that they had not actually put any of their own bees on the property so they had not needed the equipment yet. She stated that there was no other equipment or storage for anything not related to the wedding venue. The Building Official did find two small bins labeled cow/horse meds in the storage room. In one of the previous meetings the owners had stated that this was an original pole barn that was on the property when they bought it and they had done major renovations. The barn appears to face an entirely different direction than the original. When asked, Jenny stated that the original barn was torn down and this one was reconstructed with some of the material from the first one, she was not sure how much of the material was used. She stated that they had been granted ag exemption when the barn was built and some time after that they closed it in and made the improvements to create a venue. As this visit was an initial visit and intended for classification purposes, We did not conduct a complete fire safety inspection. There were some obvious violations noted in our walk-through including uninspected fire extinguishers, inoperable panic hardware on the doors, improperly placed exit signage. exposed electrical wiring. and unsecured electrical panels. There was also a noticeable lack of life safety systems such as fire alarms and sprinkler systems. A complete review of engineered plans and a full fire safety inspection will still need to be performed.” 27. As referenced above, photographs from the inspection of the Structure are attached hereto as Composite Exhibit A. 28. After the inspection, the Fire Marshal and Building Official each made determinations within the scope of their respective authority, and took appropriate action to protect the health and safety of the public. FIRE MARSHAL’S FINDINGS AND ACTION CONCERNING THE STRUCTURE 29. The Fire Marshal, pursuant to his authority to inspect and classify structures alleged to be used for agritourism activity, found that the Structure is used primarily as a wedding and meeting venue and is “a structure or facility that is used primarily for housing, sheltering, or otherwise accommodating members of the general public”. See Correspondence from Fire Marshal dated March 29, 2023, attached hereto as Exhibit H. 30. As a result, the Fire Marshal found that the Structure is subject to the Florida Fire Prevention Code. If, as Plaintiff asserts, the Structure is not excluded from the statutory definition of “agritourism activity” and the use of the Structure as a wedding venue constitutes agritourism activity, the Structure is nevertheless classified as a “Class 3” structure, which is subject to the Florida Fire Prevention Code. 31. Alternatively, if the Structure is excluded from the statutory definition of “agritourism activity” as determined by the Code Compliance Department and the Building Official, then the Structure is not subject to any other exemption from the requirements of the Florida Fire Prevention Code, and the Structure is subject to the Florida Fire Prevention Code. 10 32. The Fire Marshal also found that from the time the Plaintiff alleges that it started operating the Structure as a wedding venue (February 2022), through the present, the Plaintiff has violated Plaintiffs legal obligation to notify the Fire Marshal prior to the use of the Structure for alleged agritourism activities, thereby artfully avoiding the Fire Marshal’s legally required classification inspection of the Structure. 33. Based on the fact that the Structure was constructed without any plans review or permits, was never inspected for the Florida Fire Prevention Code, had no approved occupant load, had obstructed or substandard means of egress, had no fire protection systems in place (that is, no required sprinkling and fire alarm systems in place), among other violations, and was accommodating hundreds of members of the general public a least three days a week, the Fire Marshal issued and posted a Cease and Desist order for use of the Structure. BUILDING OFFICIAL’S FINDINGS AND ACTION CONCERNING THE STRUCTURE 34. The Building Official, pursuant to his authority to enforce, interpret, and classify structures pursuant to, the Florida Building Code, found that the Structure is “intended primarily to house, shelter, transport, or otherwise accommodate members of the general public”, that the Structure is a “new or additional structure[] or facilit[y] 99 ‘construct[ed]” after the passage of Ch. 2013-179, Laws of Florida, and that as a result, the use of the Structure does not satisfy the statutory definition of “agritourism activity”. See Building Official Inspection Report attached hereto as Exhibit I. 35. The Building Official further found that the Structure is not appropriately classified as a nonresidential farm building under Section 553.73(10)(c), Florida Statutes, and that the structure is not subject to the exemption from the Florida Building Code provided in Section 604.50, Florida Statutes. 11 36. The Building Official further found that his prior classification of the Structure as a nonresidential farm building was based on inaccurate, misleading, and/or false representations under oath from Plaintiff, as well as information that was no longer true (as a result of the Property Appraiser’s revocation of agricultural classification of the Structure), and that as a result, the Building Official’s prior determination was appropriately revoked and superseded. 37. Based on these findings, and upon the fact that there had been no plans review, permits, or inspections of the Structure, and the fact that all work had been completed, the Building Official found that he was unable to conduct a thorough inspection to verify the integrity of the Structure and the safety of the public, and therefore declared the Structure Unsafe, and posted an Unsafe Structure placard on the Structure. 38. As discussed herein, Plaintiff does not meet the standard for the entry of a preliminary temporary injunction. As such, County respectfully requests the Court enter an order denying Plaintiff's Emergency Motion. MEMORANDUM OF LAW I Standard of Review “{A] preliminary injunction is an extraordinary remedy which should be granted sparingly...” City of Jacksonville v. Naegele Outdoor Adver. Co., 634 So. 2d 750, 752 (Fla. Ist DCA 1994) (quoting Thompson v. Planning Comm'n, 464 So. 2d 1231, 1236 (Fla. lst DCA 1985)). To obtain a preliminary injunction, the Plaintiff must demonstrate (1) a substantial likelihood of success on the merits; (2) irreparable harm absent the entry of an injunction; (3) the lack of an adequate remedy at law; and (4) that injunctive relief will serve the public interest. Reform Party of Fla. v. Black, 885 So. 2d 303, 305 (Fla. 2004). “Clear, definite, and unequivocally sufficient factual findings must support each of these four criteria before the court 12 may enter the injunction.” Wade v. Brown, 928 So. 2d 1260, 1261 (Fla. 4th DCA 2006) (quoting Aerospace Welding, Inc. v. Southstream Exhaust & Welding, Inc., 824 So. 2d 226, 227 (Fla. 4th DCA 2002)); see also Machovec v. Palm Beach County, 310 So. 3d 941, 945 (Fla. 4th DCA 2021) (“Ifa party fails to prove one of the requirements, the motion for injunction must be denied.”). “(T]he purpose of a temporary injunction is to preserve the status quo pending the final hearing...” Sacred Family Invs., Inc. v. Doral Supermarket, Inc., 20 So. 3d 412, 417 (Fla. 3d DCA 2009). Moreover, “[t]he status quo preserved by a temporary injunction is the last peaceable noncontested condition that preceded the controversy.” Bailey v. Christo, 453 So. 2d 1134, 1137 (Fla. 1st DCA 1984) (citing Bowling v. Nat'l Convoy & Trucking Co., 101 Fla. 634, 135 So. 541 (1931)) (emphasis added). “Although a trial court has broad discretion in granting injunctive relief, it is an extraordinary remedy that requires a clear legal right, free from reasonable doubt.” Meritplan Ins. Co. v. Perez, 963 So, 2d 771, 776 (Fla. 3d DCA 2007). Il. Summary of Argument Plaintiff utterly fails to meet the standard for the entry of a preliminary temporary injunction. First, Plaintiff fails to demonstrate that it has a substantial likelihood of success on the merits of the instant suit. Plaintiff oversimplifies the legal and factual analysis required for the Court to decide whether Plaintiff has a substantial likelihood of success on the merits of the instant suit. Even if Plaintiff’s Emergency Motion contained the required factual and legal analysis required, the County’s evidence and legal argument makes clear that Plaintiff does not have a substantial likelihood of success on the merits of the instant suit. Next, Plaintiff cannot show that it will suffer irreparable harm absent the entry of a preliminary injunction, and impermissibly attempts to join the damages suffered by “Plaintiff’s patrons” to overcome that fact. To the same, 13 the damages alleged by Plaintiff that are properly before the Court could be obtained in a proceeding at law. Finally, the entry of a preliminary injunction here will not serve the public interest. Rather, such action would stymie the efforts of the County to protect the hundreds of folks that are, unbeknownst to them, using the unpermitted, uninspected, and non-complaint structure every week as a wedding venue. Til. Argument A. Plaintiff Failed to Demonstrate that it has a Substantial Likelihood of Success on the Merits of the Instant Suit Plaintiff must prove by clear, definite, and unequivocally sufficient factual findings that it has a substantial likelihood of success on the merits in the instant suit. See Black, 885 So. 2d at 305; Brown, 928 So. 2d at 1261. A substantial likelihood of success on the merits is shown if good reasons for anticipating that result are demonstrated. See City of Fort Lauderdale v. Canary Enterprises, Inc., 546 So. 2d 1114, 1117 (Fla. 4th DCA 1989). This requires the Plaintiff to demonstrate a “clear legal right,” with proof to a reasonable certainty of success on the merits, to demonstrate that Plaintiff has a substantial likelihood of success on the merits of the instant suit. Id.; Zimmerman y. D.C.A, at Welleby, Inc., 505 So. 2d 1371, 1373 (Fla. 4th DCA 1987). Plaintiff has failed to demonstrate a “clear legal right” supported by clear, definite, and unequivocally sufficient factual findings that the Plaintiff has a substantial likelihood of success on the merits in the instant suit. Primarily, Plaintiff oversimplifies, and to an extent misstates the legal analysis and factual determinations required for this Court to render a decision as to Plaintiff’s Count I for Declaratory Relief in Plaintiff's Emergency Motion. See Pl’s Emergency Motion at {fj 13-15. The analysis below fleshes out and applies the complex web of law required for the Court to fully understand the issues concerning the Structure’s appropriate classification and status, and the legal basis for the County’s actions concerning the Structure. 14 1. The Structure is Excluded from Definition of “Agritourism Activity” Contrary to Plaintiff's assertions, the Structure is excluded from the definition of “agritourism activity” based on the definition contained in Section 570.86(1), Florida Statutes, which is defined as follows: qd) “Agritourism activity” means any agricultural related activity consistent with a bona fide farm, livestock operation, or ranch or in a working forest which allows members of the general public, for recreational, entertainment, or educational purposes, to view or enjoy activities, including farming, ranching, historical, cultural, civic, ceremonial, training and exhibition, or harvest-your-own activities and attractions. An agritourism activity does not include the construction of new or additional structures or facilities intended primarily to house, shelter, transport, or otherwise_accommodate_members_of the eneral ublic. An activity is an agritourism activity regardless of whether the participant paid to participate in the activity. (emphasis added). Chapter 2013-179, Laws of Florida, amended Section 570.86(1), Florida Statutes, in 2013 to add the underlined exclusion from the definition of “agritourism activity”. See Ch. 2013-179, Laws of Florida. In a recent opinion advising a county as the county’s determination of whether an activity constituted “agritourism activity” under the statute, the Office of the Attorney General interpreted this exclusion to find that: [P]art of the County's regulatory decision requires it to ascertain whether there are any structures built after 2013 (the year in which this part of the statute was enacted, see ch. 2013-179, §2, Laws of Fla.) that constitute "new or additional structures or facilities intended primarily to house, shelter, transport, or otherwise accommodate members of the general public," because such structures are excluded from the definition of "agritourism activity." § 570.86, Fla. Stat. (2021). In making this additional determination, the County may, similarly, consider, but not exclusively rely upon, the appraiser's classification of those structures (here, as nonagricultural) and the information underlying that determination. Informal Op. Att'y Gen. Fla., February 16, 2022, n. 27. The evidence before the Court clearly demonstrates that the Structure is a new structure and not a “renovated” structure, and that the Structure is intended primarily to house, shelter, transport, or otherwise accommodate members of the general public. 15 The 2020 Aerial, marked as Attachment 1 to the affidavit attached as Exhibit B, clearly demonstrates that at some time between February 20, 2020 and May 4, 2020, a barn existed on the Subject Property. The January 2021 Aerial, marked as Attachment 2 to the affidavit, clearly demonstrates that as of January 5, 2021, at 12:30 PM, the prior barn had been completely removed, to be replaced with the beginning posts and beams of a new structure, oriented for a roof truss structure rotated 90 degrees from the prior barn. The December 2021 Aerial, marked as Attachment 3 in the affidavit, depicts the new Structure as of December 21, 2022, at 11:27 AM, with its roof structure rotated 90 degrees from the prior barn. Interestingly, the December 2021 Aerial depicts the new Structure complete with an outdoor ceremony space for couples to be wed, which was taken nearly a week after Plaintiff submitted its Building Permit Exemption Affidavit averring under oath that the use of structure was “storing hay, feed, stock trailers, equipment, and other necessary agriculture equipment”, while omitting any reference to use as a wedding venue or for alleged agritourism activities. As detailed in the Fire Marshal’s Inspection Remarks at Exhibit E and the inspection photographs at Composite Exhibit A, the evidence is clear that the primary use of the Structure is as a wedding and meeting venue, and that the Structure is “intended primarily to house, shelter, transport, or otherwise accommodate members of the general public.” 2. Legal Basis for Fire Marshal’s Determinations Contrary to Plaintiff’s assertions, the Fire Marshal’s determination that the Structure is subject to the Florida Fire Prevention Code is not logically dependent upon: (1) the Building Official’s determination that the Structure is not appropriately classified as a nonresidential farm building under Section 553.73(10)(c), Florida Statutes; (2) the Building Official’s determination that the Structure is not subject to the exemption from the Florida Building Code provided in 16 Section 604.50, Florida Statutes; or (3) the Building Official’s determination that the Structure does not satisfy the statutory definition of “agritourism activity”, based upon the exclusion added to the definition by Chapter 2013-179, Laws of Florida. Rather, based upon his inspection of the Structure on March 28, 2023, as well as the additional information provided by representatives of Plaintiff on both March 27 and 28, 2023, the Fire Marshal made a determination that the Structure is used primarily as a wedding and meeting venue and is “a structure or facility that is used primarily for housing, sheltering, or otherwise accommodating members of the general public”, otherwise consistent with the definition for a “Class 3” structure as set forth in Section 633.202(16)(b)(3)(c), Florida Statutes. Section 633.202(16), Florida Statutes, provides in pertinent part: “633.202 Florida Fire Prevention Code. (16)(a) As used in this subsection, the term: 1 “Agricultural pole barn” means a nonresidential farm building in which 70 percent or more of the perimeter walls are permanently open and allow free ingress and egress. “Nonresidential farm building” has the same meaning as provided in s. 604.50. (b) Notwithstanding any other provision of law: 1 Anonresidential farm building in which the occupancy is limited by the property owner to no more than 35 persons is exempt from the Florida Fire Prevention Code, including the national codes and Life Safety Code incorporated by reference. An agricultural pole barn is exempt from the Florida Fire Prevention Code, including the national codes and the Life Safety Code incorporated by reference. Except for an agricultural pole barn, a structure on a farm, as defined in s. 823.14(3)(c), which is used by an owner for_agritourism activity, as defined in_s. 570.86, for which the owner receives consideration must be classified in one of the following classes: 17 Class 1: A nonresidential farm building that is used by the owner 12 or fewer times per year for agritourism activity with up to 100 persons occupying the structure at one time. A structure in this class is subject to annual inspection for classification by the local authority having jurisdiction. This class is not subject to the Florida Fire Prevention Code but is subject to rules adopted by the State Fire Marshal pursuant to this section. Class 2: A nonresidential farm building that is used by the owner for agritourism activity with up to 300 persons occupying the structure at one time. A structure in this class is subject to annual inspection for classification by the local authority having jurisdiction. This class is not subject to the Florida Fire Prevention Code but is subject to rules adopted by the State Fire Marshal pursuant to this section. Class 3: A_ structure or facility that is_used primarily for housing, sheltering, or otherwise accommodating member: of the general public. A structure or facility in this class is subject to annual inspection for classification by the local authority having jurisdiction. This class is_subject to_the Florida Fire Prevention Code. (c) The State Fire Marshal shall adopt rules to administer this section, including, but not limited to: 1 The use of alternative life safety and fire prevention standards for structures in Classes 1 and 2; Notification and inspection requirements for structures in Classes 1 and 2; The application of the Florida Fire Prevention Code for structures in Class 3; and Any other standards or rules deemed necessary in order to facilitate the use of structures for agritourism activities.” (Emphasis added). 18 As explained in his letter dated March 29, 2023, and vital to the Court’s analysis here, the Fire Marshal found that the Structure is subject to the Florida Fire Prevention Code regardless of whether the use of the Structure satisfies the definition of “agritourism activity”. If, as Plaintiff asserts, the Structure is not excluded from the statutory definition of “agritourism activity” and the use of the Structure as a wedding venue under the unique facts of this Structure constitutes agritourism activity, the Structure is nevertheless classified as a “Class 3” structure, which is subject to the Florida Fire Prevention Code. Alternatively, if the Structure is excluded from the statutory definition of “agritourism activity” as determined by the Code Compliance Department and the Building Official, then the Structure is not subject to any other exemption from the requirements of the Florida Fire Prevention Code, and thus the Structure is subject to the Florida Fire Prevention Code. Pursuant to Rule 69A-67.004, F.A.C., adopted pursuant to the authority of Section 633.202(16)(c), Florida Statutes, the owner of a nonresidential farm building that proposes to use such building as a Class 1, 2, or 3 building for agritourism activities is required to notify the Authority Having Jurisdiction (“AHJ” — in Okeechobee County, the Fire Marshal), prior to the use of such facility. From February 2022, the time Plaintiff admits that it began using the Structure as a wedding venue, through the time County officials contacted representatives of Plaintiff in March 2023, Plaintiff never_notified the Fire Marshal that it intended to use the structure for gritourism activities. As a result, the Fire Marshal also found that from the time the Plaintiff alleges that it started operating the Structure as a wedding venue (February 2022), through the present, the Plaintiff has violated Plaintiff’s legal obligation to notify the Fire Marshal prior to the use of the Structure for 19 alleged agritourism activities, thereby artfully avoiding the Fire Marshal’s legally required classification inspection of the Structure. Based on the fact that the Structure was constructed without any plans review or permits, was never inspected for the Florida Fire Prevention Code, had no approved occupant load, had obstructed or substandard means of egress, had no fire protection systems in place (that is, no required sprinkling and fire alarm systems in place), among other violations, and was accommodating hundreds of members of the general public a least three days a week, the Fire Marshal issued and posted a Cease and Desist order for use of the Structure. 3. Legal Basis for Building Official’s Determinations The Building Official, pursuant to his authority to enforce, interpret, and classify structures pursuant to, the Florida Building Code, and based upon his inspection of the Structure on March 28, 2023, additional information provided by representatives of Plaintiff on both March 27 and 28, 2023, and information provided by the Property Appraiser, found that the Structure is “intended primarily to house, shelter, transport, or otherwise accommodate members of the general public”, that the Structure is a “new or additional structure[] or facilit[y] >> «6 construct[ed]” after the passage of Chapter 2013-179, Laws of Florida, and that as a result, the use of the Structure does not satisfy the statutory definition of “agritourism activity”. See infra at pg. 14-15. The Building Official further found that the Structure is not appropriately classified as a nonresidential farm building under Sec. 553.73(10)(c), Fla. Stat., and that the structure is not subject to the exemption from the Florida Building Code provided in Sec. 604.50, Fla. Stat. Section 604.50(1), Florida Statutes, provides in pertinent part: a) Notwithstanding any provision of law to the contrary, any nonresidential farm building... that is located on lands used for bona fide agricultural purposes, not including those lands used for urban agriculture, is exempt from the Florida 20 Building Code and any county or municipal code or fee, except for code provisions implementing local, state, or federal floodplain management regulations. Section 604.50(2)(d), Florida Statutes, provides a definition of “nonresidential farm building” as used in the section, which can broken down into the following elements: (d) “Nonresidential farm building” means: (Element 1) any temporary or permanent building or support structure (Element 2a) that is classified as a nonresidential farm building on a farm under s. 553.73(10)(c) or (Element 2b) that is used primarily for agricultural purposes, (Element 3a) is located on land that is an integral part of a farm operation or (Element 3b) is classified as agricultural land under s. 193.461, (Element 4) and is not intended to be used as a residential dwelling. (Element 5) The term may include, but is not limited to, a barn, greenhouse, shade house, farm office, storage building, or poultry house. The Building Official found that both Element 2 and Element 3 of this definition are not satisfied with respect to the Structure. As to Element 2a, Section 553.73(10)(c), Florida Statutes, provides in pertinent part: 553.73 Florida Building Code. (10) The following buildings, structures, and facilities are exempt from the Florida Building Code as provided by law, and any further exemptions shall be as determined by the Legislature and provided by law: © Nonresidential farm buildings on farms. The same exemption is specified in Section 102.2, 2020 Florida Building Code, Building, 7th Edition’. Pursuant to his authority to enforce, interpret, and classify structures pursuant to, the ? 102.2 Building. The provisions of the Florida Building Code shall apply to the construction, erection, alteration, modification, repair, equipment, use and occupancy, location, maintenance, removal and demolition of every public and private building, structure or facility or floating residential structure, or any appurtenances connected or attached to such buildings, structures or facilities. Additions, alterations, repairs and changes of use or occupancy group in all buildings and structures shall comply with the provisions provided in the Florida Building Code, Existing Building. The following buildings, structures and facilities are exempt from the Florida Building Code as provided by law, and any further exemptions shall be as determined by the legislature and provided by law: ()Nonresidential farm buildings on farms. 21 Florida Building Code, and based on the information discussed above, the Building Official found that the Structure is not appropriately classified as a nonresidential farm building on a farm under Section 553.73(10)(c), Florida Statutes. As to Element 2b, based on the information discussed above, the Building Official found that the Structure is not “used primarily for agricultural purposes”. As to Element 3a, based on the information discussed above, the Building Official found that the Structure is not “located on land that is an integral part of a farm operation”. As to Element 3b, based on the Property Appraiser’s 2022 denial of agricultural classification for the Structure, and the Value Adjustment Bo