PESTICIDE DRIFT

Your Legal Rights & Remedies Under the Florida Pesticide Law 

"A Drift Cloud Will Actually Rise, Carrying With It The Potential To Ruin You"

I want to bring your attention to the Florida Pesticide Law (FS487.001-1998) which is administered by the Florida Department of Agriculture and Consumer Services (FDACS).  The purpose of the Florida Pesticide Law (FPL) is to regulate the distribution, sale and use of pesticides, and to protect people and the environment from the adverse effects of pesticides (FS487.012-1998).  We will focus on the sections of the FPL that address the protection of people and the environment.

The FPL prohibits and declares it unlawful for any person to handle, transport, store, display or distribute pesticides in such a manner to endanger human beings or the environment, or to endanger food, feed, or any other products that may be transported, stored, displayed or distributed with such pesticides.  And further, it is unlawful under the FPL for any person to:

Operate an applicator or spray machine in a faulty, careless or negligent manner; Apply any pesticide directly to, or in any manner cause any pesticide to drift onto, any person or area not intended to receive the pesticide.  (Florida Statute 487.031(11),(13(d) & (e) (1998).

The FPL does not create a cause of action for an injured party or claimant who has been damaged or injured from pesticide drift.  Legal recourse under the theories of negligence, strict liability in tort, etc. in a civil court with jurisdiction, or ciminal charges remains available to the injured party.  The FPL is however, authority under which the Florida Department of Agriculture and Consumer Services (FDACS) can  conduct an administrative hearing against any person or company that performs an unlawful act as described above and pursue fines and other sanctions against the party at fault.

The procedure to file a claim is straightforward under FPL 487.159:

(1) The person claiming damage or injury to property, animal or human beings from application of a pesticide shall file with the department a written statement claiming damages, on a form precscribed by the department, within 48 hours after the damage or injury becomes apparent.  The statement shall contain, but shall not be limited to, the name of the person responsible for the application of the pesticide, the name of the owner or lessee of the land on which the crop is grown and for which the damages are claimed, and the date on which it is alleged that the damages occurred.  The department shall investigate the alleged damages and notify all concerned parties of its findings.  If the findings reveal a violation of the provisoins of this part, the department shall determine an appropriate penalty, as provided in this part.  The filing of a statement or the failure to file such a statement need not be alleged in any complaint which might be filed in a court of law, and the failure to file the statement shall not be considered any bar to the maintenance of any criminal or civil action.

(2) It is the duty of any licensee to report unreasonable adverse effects on the environment or damage to property or injury to a person as a result of the application of a restricted-use pesticide by the licensee or by an applicator or mixer-loader under the licensee's direct supervision, if and when the licensee has knowledge of such damage or injury.  It is also the express intent of this section to require all physicians to report all pesticide-related illnesses or injuries to the nearest county health department, which will notify the department so that the department may establish a pesticide incident monitoring system within the Divison of Agricultural Environmental Services.

(3) When damage to human beings, animals, plants or other proeprty is alleged to have been done, the claimant shall permit the licensee and the licensee's representatives to observe within reasonable hours the alleged damage in order that the damage be examined.  The failure of the claimant to permit observation and examination of the alleged damage shall automatically bar the claim against the licensee.

Section 3 is important to note in that it requires that the claimant permit the party at fault to examine the alleged damage or be subject to having the claim barred against the applicator.  Whether a person whose crops have been damaged from spray drift or who has suffered personal injury from exposure pursues their claim under the FPL or civil court is a discussion to be conducted with their attorney.  As with many things under the law, the administrative approach could help or hinder your case, depending in part on what recovery or remedy is sought.