# Opposition Brief — Vaughan v. Florida Department of Agriculture and Consumer Services (No. 06-963)

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 2006

## Text

No. 06-963

IN THI

Supreme Court of the United States

CHRISTOPHER D. VAUGHAN,
Petitioner,

v.
FLORIDA DEPARTMENT OF AGRICULTURE
AND CONSUMER SERVICES, er al.

Respondents.
Ow Priirion FOR A Writ oF CERTIORARI TO THE
Disrrict Courr or Appr at OF FLoRipA, Fourtu District

BRIEF IN OPPOSITION FOR RESPONDENTS

DEBORAH CONNER, ANTONIO ELZO, AND

FLORIDA DEPARTMENT OF AGRICULTURE
AND CONSUMER SERVICES

Wes ey R. Parsons
Counsel of Record
Jack R. Reiter
Aporno & Yoss LLP
2525 Ponce de Leon Boulevard
Surte 400
Miami. Florida 33134
(305) 460-] 000

Attorneys for Respondents

Deborah Conner, Antonio Elzo, and
Florida Department of Agriculture
and Consumer Services

the

fries g
;
’ +

i

TABLE OF CONTENTS

Page
TABLE OF CITED AUTHORITIES ............ iil
tpg 9 58 og 9 oS nnennene ParaPeMirar rH be < l
REASONS FOR DENYING THE PETITION ..... 2
STATEMENT OF THE CASE .....cccccccssess 2
ARAFIMEITE 600 000000000se0nens eee 6
I THE FOURTH DISTRICT COURT OF
APPEAL CORRECTLY AFFIRMED
DISMISSAL OF VAUGHAN’S COMPLAINT
BECAUSE THE LAW REQUIRING THE
DEPARTMENT TO OBTAIN WARRANTS
TO INSPECT DOORYARD CITRUS TREES
WAS NOT ESTABLISHED AT THE TIME OF
THE ALLEGED FOURTH AMENDMENT
Vien ete 64 ¢ 602 auneeteeane ee 6

A. Respondents could reasonably believe
that they were authorized to conduct a
warrantless search because the
Legislature, the Commissioner of
Agriculture, and Florida courts had
declared citrus canker to be a statewide
er nn: 8

il

Contents
Page

B. The Department employees’ conduct
was objectively reasonable in light
exception to the warrant requirement for
traditionally regulated sectors of the
i Secleeaae eee ete renee ee en 13

Il. THIS COURT REJECTED CERTIORARI
JURISDICTION OVER A CASE ARISING
OUT OF SIMILAR CIRCUMSTANCES
AND UPON WHICH THE FOURTH
DISTRICT BASEDITS DECISION. ...... 15

chess es ov deeers seen evneee ees 16

iti

TABLE OF CITED AUTHORITIES

Page

Cases .
Barts v. Joyner,

865 F.2d 1187 (11th Cir. 1989) .............. 6
Blue v. Koren,

Fe toes FETs GE Gas SEED cencecnaeveawckaes 14
Camara v. Municipal Court of the City

and County of San Francisco,

DOT Ss SAP EAMTD bei ceeseneceesenecees 8,9, 10
Courson v. Mc Millian,

939 F.2d 1479 (11th Cir. 1999) .............. 6
Denny v. Conner,

462 So. 2d 534 (Fla. Ist DCA 1985) .......... 11
Dep t of Agriculture v. Haire,

836 So. 2d 1040 (Fla. 4" DCA 2003) ........ 5, 8, 11
Dep t of Agriculiure v. Miami-Dade County,

790 So. 24 555 (Fla. 3d DCA 2001)........... 8,9
Dep t of Agriculture v. Polk,

SOP OO. BE Se Es COD cc ec ccdnccveusctees 14
Dep t of Agriculture v. Pompano Beach,

792 So. 2d 539 (Fla. 4th DCA 2001) .......... 2,11

iv

Cited Authorities

Dep t of Agriculture v. Sun Gardens, LLP,

780 So. 2d 922 (Fla. 2d DCA 2001) .......

Grimm vy. Spell,
Case No. 2:00-CV-506-FTM-29DNF

Oe is hein vn dy

Haire v. Dep t of Agriculture,

870 So. 2d 774 (Fla. 2004) ..............

Hope v. Pelzer,

eo Ae rr

Hutton v. Strickland,

919 F.2d 1531 (11th Cir. 1990) ..........

Jacobson v. Commonwealth of Mass.,

Pee GE PRONE b.c0 ons as neta snneeas

Kroplin v. Truax,

ek me Fk 8.) eer

LeRoy v. Illinois Racing Bd.,

Cope wie ey, Fe A)

Malley v. Briggs,

BES Wie DIO EATEE 5c sees veneecndedse-s

Marshall v. Barlow's, Inc.,

GP Se PEE GRSIS) ca cvevertecsneeesws

Page

11

15

7,8

10

10

15

Cited Authorities
Page

Moore v. State,

GAS SO. BE 209 (FM. CPCS) sink i rec sanvaswess 15
New York v. Burger,

SES Se. GP8 COST) occ incceeexeaeweekunes 15
Nordmann v. Florida Dept of Agriculture,

473 So. 2d 278 (Fla. Sth DCA 1985) .......... 1]
North Am. Cold Storage Co. v. City of Chicago,

RAE SUREPOS becccciuvaseeeyeeeeuers 10
Richardson v. Baldwin,

124 Fin. 233 So. 255 (Fin. 1936)... cc ccccsess 14
Sapp Farms, Inc. v. Dept of Agriculture,

761 So. 2d 347 (Fla. 3d DCA 2000) ........... 1]
Schwartz v. Pridy,

94. F.56 433 (00 Cwr. F996) 6 ois viweeveewas 15
Showers v. Spangler,

182 F.3d 165 (3d Cir. £999) cc cece keee veces 15
Tillman v. Coley,

oe Siveig: Pe a, errr rarer 6

United States v. Argent Chem. Lab, Inc.,
93 F.3d 572 (9th Cir. 1996) ..............-5. 14

vi

Cited Authorities
Page

United States v. Branson,

oh Fe CLS CGO. TIPS) .g ccccccccccccvee 15
United States v. Cobb,

975 F.2d 152 (Sth Cir. 1992) ................ 15
United States v. Lanier,

a RR re ree 7
Winters v. Board of County Comm'rs,

4 F.3d 848 (10th Cir. 1993) ................. 15
Zeigler v. Jackson,

7hO F.26 G67 CLiGs Cir. 19GS) . nc ccc cccccess 6
United States Constitution
Fourth Amendment ..................----. 2,5, 8,9
I cc ct to cack es teehee suri 8
Statutes
Chapter 00-308, Laws of Florida ............... 12
Chapters 570-604, Florida Statutes (2000) ....... 14
Section 581.111, Florida Statutes (2000) ......... 10

Section 581.031(7), Florida Statutes (2000) ...... 14

vii

Cited Authorities

Page
Section 581.011(23), Florida Statutes (2000) ..... 7
Section 581.031(15), Florida Statutes (2000) ..... 14
Section 581.031(15)(a), Florida Statutes (2000) ... 7
Section 581.031(17), Florida Statutes (2000) ..... 14
Other Authorities
Chapters 5A-5L, Florida Administrative Code ee
Fia. Const. of 1885, art. 1V,§ 20 ............... 14

l

INTRODUCTION

Petitioner, Christopher D. Vaughan (“Vaughan”), has not
demonstrated a sufficient basis for invoking this Court’s very
narrow certiorari jurisdiction. This Court has already
examined and crafted the law regarding the primary issue
presented in his Petition—the parameters of qualified
immunity afforded a government official--and Vaughan does
not demonstrate that Florida’s Fourth District Court of Appeal
or the Florida Supreme Court has failed to apply federal or
constitutional law correctly.

The Fourth District Court of Appeal’s conclusion, and
the Florida Supreme Court’s denial of discretionary
jurisdiction, is completely correct. Respondents, Deborah
Conner and Antonio Elzo, employees of the Department of
Agriculture and Consumer Services (the “Department”),' had
a reasonable basis to believe they were authorized to enter
Vaughan’s yard to look at leaves on citrus trees pursuant to a
statutory grant of authority and the declared state of
emergency regarding citrus canker in Florida. At the time
the Department employees entered Vaughan’s yard for this
limited purpose, no Florida Court had contravened the
statutory authority to conduct a warrantless search and, in
fact, multiple Florida courts had recognized the exigent
circumstances posed by citrus canker that required immediate
inspection and tree removal. The Court should therefore deny
the Petition.

1. Although named as a defendant below, the Department is
not subject to the issue on review pertaining to the right to sue the
individual employees.

2

REASONS FOR DENYING THE PETITION

The Court should deny the Petition because the law was
not so well settled at the time the Department employees
entered Vaughan’s property that they should be denied
qualified immunity and held individually liable for alleged
Fourth Amendment violations.

When the Department employees entered Vaughan’s
property for the limited purpose of inspecting leaves on citrus
trees, Florida law clearly authorized the limited intrusion due
to exigent circumstances presented by citrus canker’s
onslaught. That a Florida state court years after the
examination decreed that state authorities needed a warrant
to inspect dooryard citrus cannot override qualified immunity.

STATEMENT OF THE CASE

The long battle fought by Florida’s Citrus Canker
Eradication Program (“CCEP”) was reviewed by Florida’s
Supreme Court in Haire v. Dep't of Agriculture, 870
So. 2d 774 (Fla. 2004), citing Dep t of Agriculture v. Pompano
Beach, 792 So. 2d 539, 541-42 (Fla. 4th DCA 2001):

Citrus canker was discovered in Florida in
1914 and eradication programs continued through
the mid 1930s. In the mid 1980s, an Asian strain
of citrus canker, xanthomonas axonopodis pv.
citri., the strain of citrus canker at issue in this
case, was discovered in Manatee County. It was
considered eradicated in 1992 and the eradication
program halted in 1994. However, in 1995 an
outbreak was discovered around the Miami
International Airport.

3

Citrus canker 1s a disease that 1s caused by a
bacterial organism that attacks the fruits, leaves
and stems of a citrus plant. It causes defoliation,
fruit drop and loss of yield. It also causes
blemishes on the fruit and a loss of quality. In
severe cases, it can cause girdling of the stems
and death of the tree.

Stem lesions can survive for many years and
are capable of producing bacterial inoculum eight
to ten years later. Although symptoms of citrus
canker may be seen seven to fourteen days after
infection, the maximum visualization does not
occur until approximately 107 to 108 days after
infection. This makes it difficult to control a
disease which easily spreads through wind-driven
rain or contamination of equipment or plant
material.

xe eK

At the time that citrus canker, Asian strain,
was discovered in Miami, the citrus canker
eradication program in place called for the
destruction of trees that were infected or were
within a 125 foot radius of an infected tree. The
125 foot radius was adopted in the 1980s as a
result of a study conducted in Argentina. However,
that study did not take into account what would
happen in an urban setting.

In Miami-Dade County, the destruction of
citrus trees within a 125 foot radius of an infected
tree was not reducing the occurrences of citrus

4

canker. Therefore, the Department decided to
initiate a study that would measure the distances
that citrus canker, Asian strain, would spread in
South Florida. The study kept track of over 19,000
trees in four sites and determined the distance
between the diseased trees and the newly infected
trees. The study showed that the eradication
program which used the 125 foot radius was
inadequate because it only captured about thirty
to forty-one percent of infection that spread from
a diseased tree.

The results of the study were presented at a
meeting in Orlando attended by approximately
twenty individuals and scientists. Those at the
meeting examined the findings. After considering
a range of distances between diseased trees and
newly infected trees at the various sites, those
present determined that in order to destroy ninety-
five percent of newly infected trees, it was
necessary to destroy trees within a 1900 foot
radius of a diseased tree, thereby creating a buffer
zone which would prevent citrus canker from
spreading any further.

In March 1999, the Citrus Canker Technical
Advisory Task Force, a body of regulatory
individuals, scientists and citrus industry
representatives who deal with the issue of citrus
canker, unanimously recommended that the
Department adopt a policy to destroy trees within
a 1900 foot radius of a diseased tree in order to
eradicate citrus canker.

5

Florida courts have wrestled with striking the right
balance between fighting a virulent pathogen that threatens
the State’s citrus industry and affording citizens the highest
possible measure of due process and access to judicial review.

The case at hand stems from Vaughan’s assertion that
the Department employees had no right to enter his yard and
inspect his citrus trees without a search warrant. Whether
the entry and tree inspection was constitutional is not at issue.
The sole issue is whether the Department employees are
shielded from individual liability by qualified immunity.
At the time of the inspection, no Florida court had required
a warrant for such inspections or declared such inspections
unconstitutional. In 2003, however, years after the inspection
at issue in this case, Florida’s Fourth District Court of Appeal
analyzed the warrant requirement and concluded that certain
parts of a yard may be deemed curtilage and that the
Department must procure a warrant to inspect trees for citrus
canker. Dep t of Agriculture v. Haire, 836 So. 2d 1040, 1054-
5 (Fla. 4° DCA 2003). Notably, the same Florida district court
which ultimately held that Department employees were
required to obtain a warrant in order to inspect dooryard citrus
trees also affirmed dismissal of Vaughan’s claim against the
Department employees for violating his Fourth Amendment
right to be free from unreasonable searches and seizures.

6
ARGUMENT

I. THE FOURTH DISTRICT COURT OF APPEAL
CORRECTLY AFFIRMED DISMISSAL OF
VAUGHAN’S COMPLAINT BECAUSE THE LAW
REQUIRING THE DEPARTMENT TO OBTAIN
WARRANTS TO INSPECT DOORYARD CITRUS
TREES WAS NOT ESTABLISHED AT THE TIME
OF THE ALLEGED FOURTH AMENDMENT
VIOLATION. .

Qualified immunity affords broad protection to “all but
the plainly incompetent or those who knowingly violate the
law.” See Malley v. Briggs, 475 U.S. 335, 341 (1986); Hutton
v. Strickland, 919 F.2d 1531, 1537 (11th Cir. 1990); Tillman
v. Coley, 886 F.2d 317 (11th Cir. 1989). Qualified immunity
is evaluated by an objective standard. Courson v. McMillian,
939 F.2d 1479, 1487 (11th Cir. 1999). A government official
proves that he acted within discretionary authority by
showing objective circumstances which would compel the
conclusion that the actions were undertaken pursuant to
performance of duties and within the scope of his authority.
Id. (citing Zeigler v. Jackson, 716 F.2d 847, 849 (11th Cir.
1983)).

To defeat qualified immunity, Vaughan had to “prove
the existence of a clear, factually defined, well recognized
right of which a reasonable [government official] should have
knowledge” and that a reasonable official would have
understood that his actions would have violated that right.
See Barts v. Joyner, 865 F.2d 1187 (1!th Cir. 1989).

When the Department employees entered Vaughan’s yard
for the limited purpose of inspecting leaves on citrus trees,
they were entitled to rely on the statute authorizing such

7

inspections and the exigent circumstances surrounding the
citrus canker emergency in Florida.

The Department employees had statutory authority to inspect
Vaughan’s property for citrus canker. Section 581.031(15)(a),
Florida Statutes (2000), provided:

The department has the following duties and
powers: ... to inspect plants, plant products, or
other things or substances that may be capable of
disseminating or carrying plant pests, noxious
weeds. or arthropods, and for this purpose shall
have power to enter into or upon any place... .

“Places” were defined to include “vessels, railroad cars,
automobiles, aircraft, and other vehicles; buildings; docks;
nurseries; orchards; and other premises where plants or plant
products are grown, kept, or handled.” Section 581.011(23),
Florida Statutes (2000).

Qualified immunity operates to “ensure that before they
are subject to suit, officers are on notice their conduct is
unlawful.” Hope v. Pelzer, 536 U.S. 730, 739 (2002).
Following Hope, this Court narrowed qualified immunity to
some degree, but did not undermine the protection from suit
the doctrine provides. Under Hope, evaluating qualified
immunity requires a Court to first determine whether a
constitutional violation exists. If so, then the Court considers
whether the contours of that right are “sufficiently clear that
a reasonable official would understand that what he is doing
violates that right.” Jd. at 739. Under this analysis, an official
must have “fair warning” that his or her conduct deprived
the victim of a constitutional right. /d. at 739 (citing United
States v. Lanier, 520 U.S. 259 (1997)). Hope narrowed the

8

scope of qualified immunity slightly by holding that prior
case authority need not be materially similar in order to serve
as fair warning that certain conduct violates a person’s
constitutional rights. Hope, 536 U.S. at 739. Critically, in
Hope, the conduct involved basic human rights and dignity
when prison guards tortured an inmate.’

But in the case at hand, unlike the conduct in Hope, the
inspection of citrus trees in someone’s yard constituted at
worst a minimal intrusion that, to the Department employees,
could not be perceived as a Fourth Amendment violation.

A. Respondents could reasonably believe that they
were authorized to conduct a warrantless search
because the Legislature, the Commissioner of
Agriculture, and Florida courts had declared
citrus canker to be a statewide emergency.

Vaughan relies primarily on Camara v. Municipal Court

of the City and County of San Francisco, 387 U.S. 523
(1967), along with Fourth District Judge Gary Farmer’s
dissent, asserting that Camara put the Department employees
on fair notice that their actions were unlawful. But Camara

2. In Hope, prison guards chained a prisoner to a hitching post
for seven hours, depriving him of water and food and taunting him
as he suffered. The Court concluded that such treatment, which
transpired after alleged misconduct by the inmate, served no true
penal purpose and violated the prisoner’s Eighth Amendment right
to be free from cruel and unusual punishment. /d. at 738. Reversing
the Eleventh Circuit’s analysis and holding as too rigid, this Court
determincd that basic principles of fundamental human dignity need
not be articulated by prior judicial authorities to provide fair warning
to law enforcement officials that the subject conduct violated the
Eighth Amendment. /d. at 738.

9

does not support a holding that the law was clearly established
that warrantless searches under the CCEP were unconstitutional
at the time of the inspection.

When the Department employees entered Vaughan’s
property, no Florida court had declared the applicable statutes
or rules unconstitutional on Fourth Amendment grounds. Two
circuit court judges did subsequently rule that warrantless
searches were unconstitutional. One decision was vacated on
appeal, and the other withstood scrutiny. See Dep t of Agriculture
v. Miami-Dade County, 790 So. 2d 555 (Fla. 3d DCA 2001)
(vacating trial court decision); Dept of Agriculture v. Haire,
- 836 So. 2d 1040 (4th DCA 2003), aff'd, 870 So. 2d 774 (Fla.
2004). In Miami-Dade County, Judge Gerald Cope, concurning,
opined that the Third District should address the warrant issue
and intimated that a warrant is not required under the
circumstances presented. As he wrote, “The County and the
City appear to take the position that the entirety of a
homeowner’s yard qualifies as cartilage and that the Department
cannot enter into any part of the yard without a search warrant.
That position is incorrect.” /d. at 559 (emphasis added). If an
appellate judge on Florida’s Third District Court of Appeal, in
hindsight and with considerable deliberation, believed that a
warrant was not required in every case when the Department
inspected citrus trees on a person’s yard, then it was reasonable
for the Department employees in the field to believe that they
were not violating Vaughan’s Fourth Amendment rights when
they conducted their inspection the prior year.

Furthermore, Vaughan’s reliance upon Camara is misplaced
because that jlandmark decision is factually distinct and
contained exceptions to the warrant requirement, such that
Respondents had good cause to believe that the Fourth
Amendment did not prohibit their conduct.

10

Camara did not involve an emergency situation as is
always present with a rapidly-spreading virulent disease. In
Camara, an ordinance permitted city officials to enter “any
building, structure, or premises” to “perform any duty
imposed on them.” 387 U.S. at 526. The intrusion in Camara
was far more invasive because the statute allowed the
entrance into a dwelling without any probable cause for
inspection. /d. Here, the Department employees, in the midst
of a plant disease emergency that provided probable cause,
inspected only dooryard citrus, without entering any dwelling
place.

Moreover, there are two exceptions to Camara where
courts have dispensed with warrants for some searches. First,
Camara recognized that exigent circumstances would obviate
the need for a warrant: “Since our holding emphasizes the
controlling standard of reasonableness, nothing we say today 1s
intended to foreclose prompt inspections, even without a
warrant, that the law was traditionally upheld in emergency
situations.” The seizure of unwholesome food products or to
prevent the spread of disease constitutes an exigent circumstance
for which a warrantless search or seizure 1s appropriate. 387
U.S. at 539. This Court cited cases where the emergency
involved unwholesome food and human disease. See North Am.
Cold Storage Co. v. City of Chicago, 211 U.S. 306 (1908)
(seizure of unwholesome food); Jacobson v. Commonwealth of
Mass., 197 U.S. 11 (1905) (compulsory smallpox vaccination).
Even more compelling, this Court cited to a case involving a
contagious animal disease: in Kroplin v. Truax, 165 N.E. 498
(Ohio 1929), the Court recognized the need for immediate
destruction of tubercular cattle. So, too, Florida law required
the immediate destruction of a contagious plant pest that. See §
581.111, Fla. Stat. (2000) (defining “emergency” as “any
situation in which the department has declared a plant pest or

1!

noxious weed to be a public nuisance or when in the opinion of
the department a plant pest or noxious weed endangers or
threatens the horticultural and agricultural interest of the state’’).

The Florida Legislature, the Commissioner of
Agriculture, and Florida courts characterized citrus canker
as an emergency that required immediate action. In Denny v.
Conner, 462 So. 2d 534, 536-37 (Fla. lst DCA 1985), the
First District Court of Appeal recognized that “the threat to
the public interest in the citrus industry represented by citrus
canker is of sufficient gravity and urgency that the effect
of the immediate final order of the department should not be
further stayed by this court” (emphasis added). See Nordmann
v. Florida Dept of Agriculture, 473 So. 2d 278, 279 (Fla.
5th DCA 1985) (approving the Department’s emergency
measures, and rejecting the owner’s contention that the
Department has “failed to show imminent danger justifying
use of the state police power to destroy the trees”); Sapp
Farms, Inc. v. Dep't of Agriculture, 761 So. 2d 347, 348-49
(Fla. 3d DCA 2000) (relying on Denny and upholding the
Department’s ability to remove trees exposed to citrus
canker); Dep t of Agriculture v. Sun Gardens, LLP, 780 So.
2d 922, 924 (Fla. 2d DCA 2001) (recognizing the
Department’s finding of “possibly devastating effect of citrus
canker on the citrus industry”); Dep't of Agriculture v.
Pompano Beach, 792 So, 2d 539, 542 (Fla. 4" DCA 2001);
Haire, 836 So. 2d 1047-50 (recognizing Legislature’s ability
to protect citrus industry in agricultural emergency).

On June 15, 2000, in adopting amendments to the plant
disease laws of Florida, the Florida legislature recognized
the increasingly-acute nature of this emergency. The
legislature made several findings:

12

* an emergency exists in the South Florida area
regarding the spread of citrus canker, a bacterial
disease that damages fruit, weakens and eventually
kills trees, is highly contagious, and the presence of
which causes quarantines to be imposed on the
shipment of fresh fruit;

* joint state and federal attempts to eradicate citrus
canker have so far been unsuccessful;

¢ despite destruction of citrus trees infected with citrus
canker and of citrus trees within 125 feet of canker-
infected trees, citrus canker has spread at an alarming
rate and is now present throughout Miami-Dade
County and Broward County;

* if not eradicated quickly, citrus canker will spread to
other parts of the state and may destroy the citrus
industry and dooryard citrus throughout Florida;

* recent scientific studies have shown that citrus trees
as far as 1,900 feet from infected citrus trees will
develop the disease from wind-blown rain or by other
means.

See Ch. 00-308, Laws of Fla. (emphasis added). No court
had challenged the Legislature’s findings at the time the
Department employees inspected Vaughan’s trees.
Accordingly, when the Department employees entered
Vaughan’s yard for the limited purpose of inspecting the trees
at issue, they had a reasonable basis to believe that citrus
canker posed an exigent circumstance that obviated the need
for a warrant even if one was otherwise required.

13

Vaughan, relying upon Judge Farmer’s dissent, suggests
that no emergency existed because the situation “lacked any
compulsion of fresh pursuit, loss of criminal evidence caused
by delay, or any other recognized urgent circumstance. Unless
citrus canker disappears in the time it takes to obtain a
warrant, there is no conceivable reason not to require one.”
(Petition at 16). This argument 1s wrong because it assumes
exigent circumstances capture only potion searches for
evidence of a crime.

Citrus canker was an emergency because it 1s a virulent
plant disease that could spread any time rain fell and the
wind blew, which is frequently in South Florida. The concern
is therefore not whether citrus canker will “disappear” during
the time it takes to procure a warrant, but whether the disease
will spread and infect more citrus. To conclude that the
Department employees should have treated the citrus canker
situation as anything other than a serious emergency would
have required them to disregard the Florida Legislature, the
Commissioner of Agriculture, and multiple Florida courts
which specifically categorized citrus canker as an emergency
requiring immediate action.

B. The Department employees’ conduct was
objectively reasonable in light exception to the
warrant requirement for traditionally regulated
sectors of the economy.

Second, the status of citrus as a traditionally regulated
sector in the economy of Florida made warrantless searches
seemingly plausible. This Court had recognized that a search
warrant is not generally required in state sectors that have
been pervasively regulated and subject to close supervision
and inspection. See Marshall v. Barlow's, Inc., 436 U.S. 307

14

(1978); Blue v. Koren, 72 F.3d 1075, 1080 (2d Cir. 1995)
(extensive warrantless surveys and inspections valid
regardless of motive because of strong governmental interest
and pervasively regulated nursing industry); United States v.
Argent Chem. Lab, Inc., 93 F.3d 572, 574 (9th Cir. 1996)
(warrantless search and seizure of veterinary drugs valid
because of strong state interest in controlling misuse).

Agriculture, plant pests, and citrus have been pervasively
regulated in Florida. See generally Chs. 570-604, Fla. Stat.
(2000), Chs. 570 and 581; Chs. 5A-5L, Fla. Admin. Code,
and especially Ch. SB. The Florida legislature had authorized
the Department to control and eradicate plant diseases. See
§ 581.031(7), (15), (17), Fla. Stat. (2000). Indeed, Florida
had fought against citrus canker and other agricultural pests
for many years, and agriculture, particularly disease-
susceptible plants, have been regulated in Florida for over
100 years. See Fla. Const. of 1885, art. IV, § 20 (creating
post of Commissioner of Agriculture); Ch. 581, Fla. Stat.
(historical note documents creation of State Plant Board in
1927 to control agricultural pests); Richardson v. Baldwin,
124 Fla. 233, 168 So. 255 (Fla. 1936) (reciting duties of State
Plant Board). The destruction of trees infected or exposed to
citrus canker, under the power conferred in the Florida
Statutes, was recognized by the Florida Supreme Court after
the initia: 1985 outbreak of canker in this state. Dept of
~ Agriculture v. Polk, 568 So. 2d 35, 37-40 (Fla. 1990).

In order for warrantless administrative search to be
reasonable, there must be a substantial state interest behind
the regulatory scheme; the search is necessary to further that
scheme; and the authorizing statue is an adequate substitute
for the warrant requirement in giving notice to owners and
limiting discretion of those conducting the search. It was not

15

clearly established that warrantless citrus canker inspections
did not fit within this framework at the time the Department
employees inspected Vaughan’s trees.’

Il. THIS COURT REJECTED CERTIORARI
JURISDICTION OVER A CASE ARISING OUT OF
SIMILAR CIRCUMSTANCES AND UPON WHICH
THE FOURTH DISTRICT BASED ITS DECISION.

In the Fourth District’s Opinion, the majority of the panel
relied upon Grimm v. Spell, Case No. 2:00-CV-506-FTM-
29DNF (M.D. Fla. July 3, 2003) (Petitioner’s A-4). Just as
in this case, the Department employees in Grimm entered

3. See New York v. Burger, 482 U.S. 691, 702-704 (1987)
(warrantless search of automobile junkyard valid because conducted
pursuant to statute, necessary to further state interest in detecting
stolen cars, and discretion of officer conducting the search limited);
Showers v. Spangler, 182 F.3d 165, 172 (3d Cir. 1999) (warrantless
administrative search of taxidermist’s business would be valid if
taxidermy were pervasively regulated business); United States v.
Cobb, 975 F.2d 152, 156 (Sth Cir. 1992) (warrantless administrative
search of trucking company justified because part of company’s
business included pervasively regulated motor vehicle salvage
operation); United States v. Branson, 21 F.3d 113, 116 (6th Cir. 1994)
(warrantless administrative scarch of auto repair shop valid because
of business’ statutory regulation); LeRoy v. Illinois Racing Bd., 39
F.3d 711, 713-14 (7th Cir. 1994) (warrantless administrative search
of racehorse owner's automobile at race track valid because horse
racing pervasively regulated industry); Schwartz v. Pridy, 94 F.3d
453, 457 (8th Cir. 1996) (warrantless administrative search justified
because auto parts industry was pervasively regulated); Winters
v. Board of County Comm'rs, 4 F.3d 848, 853 (10th Cir. 1993)
(warrantless administrative search of pawn shop valid because
pawnshops are pervasively regulated); Moore v. State, 442 So. 2d
215, 216 (Fla. 1983) (warrantless administrative searches of
automotive repair shops constitutional).

16

the plaintiff's yard to inspect citrus trees before any Florida
court imposed a warrant requirement. In Grimm, the federal
district court ruled that qualified immunity shielded
Department employees, who entered a homeowner’s yard to
inspect citrus trees, from personal liability. The Eleventh
Circuit Court of Appeal affirmed the decision, and this Court
denied certiorari jurisdiction. (Grimm v. Spell, Case No. 04-
168, cert. denied, 543 U.S. 999 (2004)). Grimm is
indistinguishable from this case.

CONCLUSION
For the foregoing reasons, the Petition should be denied.
Respectfully submitted,

WESLEY R. Parsons

Counsel of Record

JacK R. REITER

Aporno & Yoss LLP

2525 Ponce de Leon Boulevard
Suite 400 ;
Miami, Florida 33134
(305) 460-1000

Attorneys for Respondents

Deborah Conner, Antonio Elzo, and
Florida Department of Agriculture
and Consumer Services

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386016_2018%3A2. Public record. Not legal advice.