Eugene Gartman and Adrienne Gartman v. Southern Tactical Range, LLC, a Florida Limited Liability Company; And BITN, LLC, A

FIRST DISTRICT COURT OF APPEAL

STATE OF FLORIDA

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No. 1D2022-3567

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EUGENE GARTMAN, ADRIENNE

GARTMAN,

Appellants,

v.

SOUTHERN TACTICAL RANGE,

LLC, BITN, LLC,

Appellees.

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On appeal from the Circuit Court for Okaloosa County.

Mary Polson, Judge.

July 23, 2025

NORDBY, J.

Adrienne and Eugene Gartman want to sue their new

neighbor for nuisance. For almost two decades, the couple enjoyed

living on their property in rural Okaloosa County. Then Appellees

purchased an adjoining property, constructed a private shooting

range, and opened for business. So the Gartmans sued the Range

and raised a nuisance claim, arguing that the Range’s operations

cause unreasonable noise that interferes with the Gartmans’ use

and enjoyment of their property. But the trial court refused to even

consider the merits of their claim. Relying on section 823.16,

Florida Statutes—which expressly exempts sport shooting ranges

from civil liability in “any matter” related to noise and declares

such ranges are “not subject to an action for nuisance”—the trial

court granted summary judgment for the Range on the Gartmans’

noise-based nuisance claim. We now must consider whether

section 823.16, as applied to the Gartmans, denies their right to

access the courts under article I, section 21 of the Florida

Constitution. We conclude that it does, and we reverse the portion

of the trial court’s order granting judgment on the noise-based

nuisance claim and remand for further proceedings. We affirm as

to all other issues raised.

I.

In 1998, Adrienne and Eugene Gartman purchased eighty

acres of property in Holt, Florida, a rural community in Okaloosa

County. The Gartmans live on this land. Their personal residence

is at the center of the property and along the parcel’s southern

boundary sits a substantial system of barns and other

outbuildings. These structures house farm equipment, horse

stables, and a bunkhouse for workers. Other portions of the cleared

property are used to pasture horses, cattle, and other animals. The

Gartmans’ children and grandchildren visit the property often to

enjoy recreational activities and learn about agriculture.

In 2017, nearly twenty years after the Gartmans bought their

property, BITN, LLC, and its subsidiary company, Southern

Tactical Range, LLC, purchased about two hundred acres of

adjoining land immediately south of the Gartmans’ property. They

soon began to permit and construct the Range, now known as the

Element Training Complex. The Range opened for business in

2018, offering 240 shooting stations, along with long range sniper

shooting, machine gun training, 360-degree rifle and pistol events,

and cowboy shooting events. At first for civilian use, the Range

became a contracted facility for both military and law enforcement

training activities as well.

While the Range was still under construction, the Gartmans

sued for private nuisance, seeking a permanent injunction and

damages. The Range moved to dismiss the complaint, arguing that

the Gartmans failed to state a cause of action for nuisance because

operations had not yet begun. Once the Range opened for business,

the Gartmans amended their complaint, alleging that the Range’s

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operations and noise significantly interfered with their daily lives

and activities, such as working in their yard, eating meals,

watching television, and reading.

The Range moved for summary judgment, arguing in part

that it was immune from liability for noise-related nuisances

under sections 823.16(2) and (3), Florida Statutes (2018). The

Gartmans responded by arguing that section 823.16 was

unconstitutional as applied to them and violated their due process

rights and right to access the courts under article I, section 21 of

the Florida Constitution. After a hearing, the trial court found that

the Range qualified for the exemption from civil liability under

section 823.16(2) and concluded that the Gartmans’ noise claims

were non-actionable, in nuisance or otherwise. The trial court also

found that the Range qualified as a “sport shooting range” under

section 823.16(1)(c), that it was permitted as a gun range, and

complied with the local noise control laws. Without explanation,

the trial court also rejected the Gartmans’ as-applied

constitutional challenge to section 823.16 under Florida’s access-

to-courts provision.

The case proceeded on several other remaining claims.

Eventually, the trial court concluded that the Range was entitled

to summary judgment on all issues, declining the Gartmans any

relief. This appeal follows.

II.

Because this case turns on a question of constitutional and

statutory interpretation, our review is de novo. W. Fla. Reg’l Med.

Ctr., Inc. v. See, 79 So. 3d 1, 8 (Fla. 2012); see also Medina v. Gulf

Coast Linen Servs., 825 So. 2d 1018, 1020 (Fla. 1st DCA 2002).

A.

Florida’s Constitution provides that “[t]he courts shall be open

to every person for redress of any injury, and justice shall be

administered without sale, denial or delay.” Art. I, § 21, Fla. Const.

(1968). Since 1838, when the first constitutional delegation

convened in St. Joseph (now Port St. Joe), all but one of Florida’s

constitutions have contained some version of this “access to courts”

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provision, expressly guaranteeing citizens the right to seek redress

of their injuries in court. 1

1 Florida’s Reconstruction-era Constitution of 1868 did not

contain any “access to courts” language, but the provision

reappeared in Florida’s 1885 Constitution.

Version Language

Art. I, § 9, Fla. Const. (1838). “That all Courts shall be open,

and every person, for an injury

done him, in his lands, goods,

person, or reputation, shall

have remedy by due course of

law; and right and justice,

administered without sale,

denial, or delay.”

Art. I, § 9, Fla. Const. (1861). “That all Courts shall be open,

and every person, for an injury

done him, in his lands, goods,

person or reputation, shall

have remedy by the due course

of law; and right and justice

administered without sale,

denial or delay.”

Art. I, § 9, Fla. Const. (1865). “That courts shall be open, and

every person, for an injury

done him in his lands, goods,

person or reputation, shall

have remedy by due course of

law; and right and justice

administered without sale,

denial or delay.”

Art. I, § 4, Fla. Const. (1885). “All courts in the State shall be

open, so that every person for

any injury done him in his

lands, goods, person or

reputation shall have remedy,

by due course of law, and right

and justice shall be

4

Today, the access-to-courts clause limits the ability of the

Legislature to abolish causes of actions that existed at the time of

the adoption of the Florida Constitution. Kluger v. White, 281 So.

2d 1, 4 (Fla. 1973). The Florida Supreme Court has explained that

the date to determine whether a right of action predates the

Florida Constitution is November 5, 1968, when the current right

to court access was adopted. Eller v. Shova, 630 So. 2d 537, 542 n.4

(Fla. 1993) (“[W]hen reviewing article I, section 21, of the Florida

Constitution, one must look to the common law as it existed on

November 5, 1968.”). Accordingly, we apply the Florida Supreme

Court’s Kluger test to constitutional access-to-courts challenges.

See Kluger, 281 So. 2d at 4. This test provides:

[W]here a right of access to the courts for redress for a

particular injury has been provided by statutory law

predating the adoption of the Declaration of Rights of the

Constitution of the State of Florida, or where such right

has become a part of the common law of the Statute

pursuant to Fla. Stat. § 2.01, F.S.A., the Legislature is

without power to abolish such a right without providing

a reasonable alternative to protect the rights of the people

of the State to redress for injuries, unless the Legislature

can show an overpowering public necessity for the

abolishment of such right, and no alternative method of

meeting such public necessity can be shown.

administered without sale,

denial or delay.”

Art. I, § 21, Fla. Const. (1968). “The courts shall be open to

every person for redress of any

injury, and justice shall be

administered without sale,

denial or delay.”

5

Id. at 4; see also Warren v. State Farm Mut. Auto, Ins., 899 So. 2d

1090, 1097 (Fla. 2005); Doss v. United Parcel Servs., 331 So. 3d

216, 218 (Fla. 1st DCA 2021).

B.

This brings us to the challenged statute: section 823.16,

Florida Statutes. In 1999, the Florida Legislature enacted section

823.16, prohibiting nuisance actions against sport shooting

ranges. The statute, which has never been amended, defines a

sport shooting range as “an area designed and operated for the use

of rifles, shotguns, pistols, silhouettes, skeet, trap, black powder,

or any other similar type of sport shooting.”

Relevant to the Gartmans’ nuisance claim, the statute goes on

to provide that:

A person who operates or uses a sport shooting range is

not subject to an action for nuisance, and a court of this

state shall not enjoin the use or operation of a sport

shooting range on the basis of noise or noise pollution, if

the range is in compliance with any noise control laws or

ordinances that applied to the range and its operation at

the time of construction or initial operation of the range.

§ 823.16(3), Fla. Stat. (2018). Additionally, section 823.16 exempts

sport shooting ranges from civil liability and criminal prosecution

based on noise pollution, and exempts sport shooting ranges from

state and agency noise regulations. § 823.16(2), Fla. Stat.

III.

On appeal, the Gartmans argue that subsections 823.16(2)

and (3), Florida Statutes, as applied to them, violate their right to

access the courts under the Florida Constitution. 2 We agree.

2 As required under Florida Rule of Civil Procedure 1.071 and

Florida Rule of Appellate Procedure 9.425, the Gartmans provided

notice of their constitutional challenge to Florida’s Office of the

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As applied to the Gartmans, these two provisions of section

823.16 eliminate their ability to bring a noise-based nuisance

claim against the Range. Subsection (3) expressly declares that a

“person who operates . . . a sport shooting range is not subject to

an action for nuisance.” It further prohibits any Florida court from

enjoining the “operation of a sport shooting range on the basis of

noise or noise pollution, if the range is in compliance with any

noise control laws or ordinances” that may apply. The statute, in

subsection (2), also makes any sport shooting range operator “not

[] subject to civil liability . . . in any matter relating to noise or

noise pollution . . . , if the range is in compliance with any noise

control laws or ordinances adopted by a unit of local government

applicable to the range” at the time of its construction or opening.

§ 823.16(2), Fla. Stat. Notably, the County does have a noise-

control ordinance, but it expressly exempts target shooting from

the allowable noise limitations. Because the Range was “in

compliance” with that local ordinance, the immunity provision

bars the Gartmans’ noise-related nuisance claim.

The right to enjoy one’s property without interference is

rooted in the common law and has long been recognized by the

Florida Supreme Court. See Prior v. White, 180 So. 347, 355 (Fla.

1938); Beckman v. Marshall, 85 So. 2d 552, 554 (Fla. 1956); Reaver

v. Martin Theatres of Fla., Inc., 52 So. 2d 682, 683 (Fla. 1951); see

also Roebuck v. Sills, 306 So. 3d 374, 377 & 378 (Fla. 1st DCA 2020)

(“‘An adjoining property owner cannot maintain a . . . nuisance on

his property which is injurious to the . . . property rights of an

adjacent landowner and not be answerable [for it].’” (quoting

McClosky v. Martin, 56 So. 2d 916, 918 (Fla. 1951)) (alterations in

original)). It is also a tenet of Florida law that excessive noise

pollution caused by the activities of one property owner provides

an adjacent property owner with the right to seek the common-law

action of nuisance and to seek to enjoin the activity giving rise to

the noise. Rae v. Flynn, 690 So. 2d 1341, 1342 n.1 (Fla. 3d DCA

1997) (“That mere noise may be so great at certain times and under

certain circumstances as to amount to an actionable nuisance and

entitle the party subjected to it to the preventive remedy of the

Attorney General during both the trial court proceedings and the

appeal in this Court.

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court of equity is thoroughly established.’”). As the common-law

right to bring a nuisance claim existed at the Florida

Constitution’s adoption in 1968, we apply the Kluger test to assess

the validity of section 823.16.

A. Reasonable Alternative

Under Kluger, we must first consider whether there is a

“reasonable alternative” available to the Gartmans as they seek

redress of their claimed injuries. 281 So. 2d at 4. Over the last five

decades, Florida courts have usually explored this concept in the

context of workers’ compensation, medical malpractice, and

no-fault automobile insurance. See e.g., Warren, 899 So. 2d at 1097

(no-fault automobile insurance); Univ. of Miami v. Echarte, 618 So.

2d 189, 196 (Fla. 1993) (medical malpractice); Lasky v. State Farm

Ins. Co., 296 So. 2d 9, 14 (Fla. 1974) (no-fault automobile

insurance); Doss, 331 So. 3d at 218 (workers’ compensation). In

each of these areas, the Florida Legislature has created statutory

schemes as alternatives to tort liability. §§ 627.730–.7405, Fla.

Stat. (2022) (Motor Vehicle No-Fault Law); §§ 766.201–.212, Fla.

Stat. (2022) (Medical Malpractice Act); §§ 440.01–.60, Fla. Stat.

(2022) (Workers’ Compensation Law). These systems provide

parties with “adequate, sufficient, and even preferable

safeguards,” satisfying Kluger’s “reasonable alternative”

requirement. See Kluger, 281 So. 2d at 4.

We find no similar “reasonable alternative” here. And the

Range fails to point to anything that would qualify as such. Under

section 823.16, immunity kicks in so long as a shooting range

complies with any local noise-control ordinances in effect at the

time of the range’s construction or initial operation. § 823.16(3),

Fla. Stat. The Range argues the Legislature included this

requirement as a “safeguard,” claiming that local governments

may restrict the permitted noise levels and Okaloosa County has

simply chosen not to here. But we find this unpersuasive towards

satisfying Kluger’s reasonable alternative prong. Because the

Range was in compliance with the County’s regulations, the

immunity provision bars the Gartmans’ noise-based nuisance

claim. They have no alternative pathway to seeking relief for that

claim, let alone a “reasonable” one.

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We also note that the Gartmans’ complaints cannot be

remedied by any future attempts by the County to regulate noise

at the Range. Section 823.16 itself exempts sport shooting ranges

that are “not in violation of existing law” from having to comply

with any newly enacted local regulations or ordinances “provided

the range was not in violation of any law when the range was

constructed and provided that the range continues to conform to

current National Rifle Association gun safety and shooting range

standards.” § 823.16(6), Fla. Stat. The Range, thus, has not

identified any “adequate, sufficient, [or] preferable safeguards”

that would provide the Gartmans with a “reasonable alternative”

to their common-law right to seek redress of their asserted

injuries. See Kluger, 281 So. 2d at 4.

Section 823.16 is therefore distinguishable from the

“reasonable alternatives” established by workers’ compensation,

medical malpractice, and no-fault automobile insurance statutes.

As applied, section 823.16 does not just limit, but eliminates the

Gartmans’ ability to bring a nuisance action against the Range for

noise. Without any statutory scheme, arbitration agreement, or

other “reasonable alternative” in place, section 823.16 fails the

first part of the Kluger test. 281 So. 2d at 4.

B. Overpowering Public Necessity

We now consider whether the other Kluger standard has been

met. With no “reasonable alternative” in place, the Legislature

must show an “overpowering public necessity” for abolishing the

right to bring a claim. Kluger, 281 So. 2d at 4; see § 823.16, Fla.

Stat. (2022). The Legislature made this showing in 1945 when it

abolished several tort actions: alienation of affections, criminal

conversation, seduction, and breach of contract to marry. See

§ 771.01, Fla. Stat. (2022); see also Kluger, 281 So. 2d at 4. In

abolishing these actions, the Legislature found that the remedies

were “subjected to grave abuses” and declared that it was in

Florida’s best interest to eliminate them. Ch. 23138, Laws of Fla.

(1945). In upholding the statute, the Florida Supreme Court

concluded that the courts must heed the Legislature’s public policy

declarations unless they are “clearly shown to have been

promulgated without power to do so.” Rotwein v. Gersten, 36 So. 2d

419, 421 (Fla. 1948).

9

We therefore defer to the Legislature’s declarations on public

policy, giving “great weight to legislative determinations of facts.”

Univ. of Miami v. Echarte, 618 So. 2d 189, 196 (Fla. 1993) (citing

Am. Liberty Ins. v. W. & Conyers Architects & Eng’rs., 491 So. 2d

573 (Fla. 2d DCA 1986)). But on its face, section 823.16 is silent as

to any legislative findings or any other justification for abolishing

nuisance causes of action against sport shooting ranges. And

chapter 99-134, Laws of Florida, which enacted section 823.16, did

not otherwise contain any factual or policy determinations to

support the existence of an “overpowering public necessity.” In this

sense, section 823.16 is not unlike the challenged statute in

Kluger, where the Florida Supreme Court found that the

Legislature had not shown an “overpowering public necessity” to

abolish the right to sue an automobile tortfeasor for property

damage. 281 So. 2d at 5. It is up to the Legislature to present such

a case; without these findings, section 823.16 fails under Kluger.

Id. at 4–5; see also Psychiatric Assocs. v. Siegel, 610 So. 2d 419, 424

(Fla. 1992) (concluding that a statute with a preamble outlining

the existence of a medical malpractice crisis in the state supported

the existence of an “overpowering public necessity”).

Both parties cite the Legislature’s staff analyses, but these

documents are “not determinative of final legislative intent.” GTC,

Inc. v. Edgar, 967 So. 2d 781, 789 (Fla. 2007) (citing White v. State,

714 So. 2d 440, 443 n.5 (Fla. 1988)); see also Kasischke v. State, 991

So. 2d 803, 811 (Fla. 2008) (“The language of the statute should be

enough.”). Even if we were to consider them, neither provide any

illumination on the issue before us. 3

3 At most, the Senate’s staff analysis noted that several other

states had recently enacted “anti-nuisance exceptions for sport

shooting ranges,” in response to growth in shooting range

activities, but later concluded that it was “indeterminate how

many sport shooting ranges there” were in Florida “or how many

ranges would benefit from immunity for civil or criminal liability.”

Fla. S. Comm. on Judiciary, SB 776 (1999) Staff Analysis 4

(Mar. 15, 1999), https://flsenate.gov/Session/Bill/1999/776/Analys

es/19990776SJU_SB0776.ju.pdf. It contains nothing that could be

viewed as a conclusive legislative finding or policy statement

showing that an overwhelming public necessity existed to support

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Invoking the interpretive canon of in pari materia, the Range

urges us to look to a completely different statute, enacted five years

after section 823.16, to find the necessary legislative statements of

public policy. Placed within a different chapter of Florida’s

statutory code, section 790.333 does address protections for sport

shooting and training ranges. And it does contain robust

legislative findings and policy statements expressing the many

benefits of—and the intent to protect from costly lawsuits—the

more than “400 sport shooting and training ranges” that exist

throughout Florida. But section 790.333 does not address private

lawsuits against firearm ranges; it expresses the legislative intent

to protect ranges from environmental-protection related

government lawsuits or legal action by the State or its agencies,

districts, or political subdivisions. § 790.333(2), Fla. Stat.

(“LEGISLATIVE INTENT.—The Legislature intends to protect

public and private sport shooting or training range owners, . . .

from lawsuits and other legal actions by the state, special purpose

districts, or political subdivisions and to promote maximum

flexibility for implementation of environmental management

practices and of the principles of risk-based corrective

action . . . .”). The 2004 law even goes so far as to disclaim any

legislative intent to “impair or diminish the private property

rights” of adjoining neighbors. § 790.333(5)(b), Fla. Stat. (“Nothing

in this act is intended to impair or diminish the private property

rights of owners of property adjoining a sport shooting or training

range.”).

Courts read statutes in pari materia so that “ambiguities in

one statute may be resolved by looking at another statute on the

same subject.” Antonin Scalia & Brian A. Garner, Reading Law:

The Interpretation of Legal Texts 430 (2012). Our inquiry today

does not focus on resolving any statutory ambiguity. Rather, we

are looking to discern the 1999 Legislature’s intent for the

existence of an overpowering public necessity to support the

abolishment of the Gartmans’ common-law right to sue their

the abolishment of nuisance actions against sport shooting ranges.

See also Fla. H.R. Comm. on Crime & Pun., HB 67 (1999) Final

Staff Analysis1–8 (May 27, 1999) https://www.flsenate.gov/Sessio

n/Bill/1999/67/Analyses/19990067HCP_HB0067Z.CP.pdf.

11

neighbor for noise-based nuisance. For purposes of our inquiry

under Kluger, the 2004 Legislature’s express findings and policy

statements in section 790.333 about government-initiated

environmental lawsuits against shooting ranges do not supply

what is lacking from the face of section 823.16. The 1999

Legislature could have included similar express language when it

enacted section 823.16. It did not. And we will not read into the

statute anything beyond what the Legislature chose to include.

All in all, we look only to the language of the statute itself.

Maggio v. Fla. Dep’t Lab. & Emp’t. Sec., 899 So. 2d 1074, 1076–77

(Fla. 2005) (“[L]egislative intent is determined primarily from the

language of the statute.”). Section 823.16 includes no legislative

findings to control our analysis. And we are hesitant to look to

other later-enacted statutes in completely different chapters to

speculate as to the Legislature’s unstated intent in enacting

section 823.16. As a result, the Legislature has not shown an

“overpowering public necessity” supporting the abolishment of the

Gartmans’ ability to pursue their nuisance claim, and section

823.16 fails the Kluger test.

IV.

For all the above reasons, we conclude that section 823.16, as

applied, is invalid under Kluger as a violation of the Gartmans’

right of access to the courts under article I, section 21. Section

823.16 does not just reduce the Gartmans’ ability to bring a noise-

based nuisance claim against the Range; it prohibits it altogether

without a “reasonable alternative” in place or an “overpowering

public necessity” to do so.

We emphasize the as-applied nature of our ruling, which

provides narrow relief only to the Gartmans, who purchased their

property before the statute’s enactment. Our reversal on this issue

means that their noise-based nuisance claim may proceed in the

trial court. We take no position on whether that claim will succeed.

Accordingly, we reverse in part the trial court’s order granting

summary judgment on the Gartmans’ noise-based nuisance claim

and remand for further proceedings. We affirm on all other issues

raised.

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REVERSED and REMANDED.

OSTERHAUS, C.J., and WINOKUR, 4 J., concur.

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Not final until disposition of any timely and

authorized motion under Fla. R. App. P. 9.330 or

9.331.

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D. Michael Chesser and Tara A. Hagan of Chesser & Barr, P.A.,

Shalimar, for Appellants.

Edward P. Fleming and Lindsey L. Miller-Hailey of McDonald

Fleming, Pensacola, for Appellees.

4 Judge Winokur substituted in as a panel member after oral

argument in this appeal. He has reviewed in full the video

recording of the oral argument, along with the record and the

parties’ briefs.

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