Filing # 27790965 E-Filed 05/28/2015 10:55:23 AM

IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT

IN AND FOR HENDRY COUNTY, FLORIDA

WILLIAM STEPHENS, CAROL GREY, and

KEELY CINKOTA,
Plaintiffs,

Case No. 2014-CA-633

v.
HENDRY COUNTY,
Defendant.

FIRST AMENDED COMPLAINT FOR INJUNCTIVE RELIEF

AND DECLARATORY JUDGMENT
1.

Plaintiffs-Citizens bring this action under Florida Constitution Article 1,

Section 24(b) and 286.011 of Florida Law, commonly referred to as Floridas Sunshine
Law, seeking judicial relief from Hendry Countys evasion of public scrutiny when it
approved two facilities that will reportedly confine, quarantine, and breed thousands of wild
and imported non-human primates (macaques) in rural residential neighborhoods. The first is
a highly controversial facility owned by a mysterious entity called SoFlo Ag LLC, and the
second is a new facility operated by a Mauritius-based company called Bioculture, on property
owned by Panther Tracts, LLC.
2.

Unlike domestic livestock, non-human primates are known carriers of a wide

array of serious infectious diseases such as Ebola, Herpes B, tuberculosis, and parasites that
may be transmitted to humans. In fact, macaques have been responsible for outbreaks of an
Ebola strain in United States research facilities, and macaques have also escaped from other
Florida breeding facilities in the past resulting in bites and other injuries. Moreover, the
operation of breeding facilities will entail a substantial increase in noise, traffic, and other
activity in degradation of the rural residential environment that the Citizens have thus far

enjoyed.
3.

Despite the radical impact that the two facilities will have on rural

neighborhoods, the County met behind closed doors with special interests that favor primate
breeding facilities while taking every possible measure to impede public participation. The
County failed to hold public meetings on its decision to approve either facility, and failed to
provide any notice about these impending decisions even though concerned residents
repeatedly asked to be involved in the decision-making process.
4.

The Countys failure to provide public notice or hold public meetings on the

issues violated the Sunshine Law because its approval of these facilities was an official act
conducted behind closed doors. Whereas other Florida counties have enacted ordinances
dealing with wild and exotic animal possession, the Hendry County Code of Ordinances is
silent about the permissibility of operating facilities like SoFlo Ag and Bioculture that confine,
quarantine, and transport thousands of wild non-human primates. The Code is therefore
necessarily silent about critical issues such as whether such facilities may be built next to
residential neighborhoods, and whether other conditions must be satisfied such as meeting
infectious disease protocols or confirming the competency of the owners to manage such
facilities.
5.

Despite the gravity of the decisions before it, the County did not engage in fair

and open decision-making processes as mandated by law. For example, the County could have
amended its ordinance to address wild and exotic animal facilities like SoFlo Ag and
Bioculture, or granted variances from the general agriculture and agriculture/conservation
zoning categories. Each of these approaches would have involved the public most impacted
by the projects in the process. Instead, County staff chose the most secretive route by
determining at closed-door meetings that they would simply bend to the breaking point the
definition of animal husbandry (i.e. the care and production of domestic animals) to include
the care and production of infectious wild and imported non-human primates, so they could
categorize the facilities as general agriculture or agriculture/conservation and avoid taking
any official action on the issue. See Hendry County Code of Ordinances 1-53-2.2 (general
2

agriculture includes animal husbandry); Animal Husbandry, MERRIAM-WEBSTER ONLINE,

available

at

http://www.merriam-webster.com/dictionary/animal%20husbandry

(last

accessed May 27, 2015) (defining animal husbandry as a branch of agriculture concerned
with the care and production of domestic animals.)
6.

County staff performed official acts subject to the Sunshine Law by effectively

creating zoning policy without any public input in regards to confining, quarantining, and
breeding thousands of wild and imported primates at facilities adjacent to residential
neighborhoods and, in the case of Bioculture, to the ecologically-sensitive Big Cypress
National Preserve. These decision-making functions were performed with special interests
behind closed doors without public notice and without public meetings in violation of the
Sunshine Law. Accordingly, the Citizens hereby ask the court to declare that the Countys
approvals of SoFlo Ags Site Development Plan (SDP) and Biocultures Site Development
Plan Amendment (SDP Amendment) are void ab initio, and to compel the County to consider
approval of each of these facilities at a public hearing after providing reasonable public notice.
JURISDICTION
7.

Plaintiffs seek an injunction in this action to enforce the Sunshine Law, and

circuit courts of this state have jurisdiction to enjoin Sunshine Law violations. 286.011(2),
Fla. Stat.; 26.012, Fla. Stat.
8.

Plaintiffs also seek a declaration that the County violated the Sunshine Law,

and circuit courts have jurisdiction to issue declaratory relief. 86.011, Fla. Stat.
VENUE
9.

Venue in Hendry County is proper because Hendry County is the defendant,

and it is the county where the cause of action accrued. 47.011, Fla. Stat.
PARTIES
10.

Plaintiff William Stephens is a citizen and resident of LaBelle, Florida, located

in Hendry County. Mr. Stephens lives in the residential neighborhood abutting the proposed
SoFlo Ag wild primate facility. Mr. Stephens is concerned about the threat of disease
transmission from primates to humans, noise, and a negative impact on property values. Mr.
3

Stephens never received any notice from the County about the proposed facilities before
approval or felt he had the opportunity to participate in the decision-making processes.
11.

Plaintiff Carol Grey is a citizen and resident of LaBelle, Florida, located in

Hendry County. Ms. Grey lives in the residential neighborhood abutting the proposed SoFlo
Ag primate facility that will house the wild macaques. Ms. Grey is concerned about the threat
of disease transmission from these macaques to humans. She is also concerned about how the
SoFlo Ag facility and the Bioculture facility will change the rural character of her and other
Hendry County neighborhoods because of heavier traffic and other activities associated with
the non-human primate facility. Ms. Grey never received any notice from the County about
either proposed facility or felt she had the opportunity to participate in the decision-making
processes.
12.

Plaintiff Keely Cinkota is a citizen and resident of Alva, Florida, located in

Lee County. Ms. Cinkota lives in the residential neighborhood abutting the proposed SoFlo
Ag wild primate facility. Ms. Cinkota is concerned about the welfare of the primates as well
as the risk that the primates may spread infectious disease by escaping or by transmitting
disease to workers who then spread it to the community. Ms. Cinkota never received any
notice from the County about either proposed facility or felt she had the opportunity to
participate in the decision-making processes.
13.

Defendant Hendry County is a subdivision of the state of Florida. The

Countys Board of County Commissioners (Board) is responsible for, among other things,
approving variances and special exceptions to the zoning code, and amending the zoning code
as needed. The Countys Planning and Zoning Department (Department) is responsible for,
among other things, approving Site Development Plans (SDP) and amendments thereto. As
government entities, the Board and Department must generally conduct all decision-making
functions at open public meetings after reasonable notice. See 286.011, Fla. Stat.; Wood v.
Marston, 442 So. 2d 934 (Fla. 1983) (staff committee that screened and eliminated candidates
for an open law school dean position were required to hold public meetings).

LEGAL AND FACTUAL BACKGROUND

A.

HENDRY COUNTY SITE PLAN AND ZONING REQUIREMENTS

14.

The Code establishes various requirements for persons seeking to develop

15.

Pertinently, the Code requires that the County approve a site development plan

land.

(SDP) for proposed developments. Code of Ordinances 1-58-56 to 1-58-60. Specifically,

the Department will review proposed developments at a level of detail showing specific
arrangement of buildings in relation to each other to allow a detailed examination of the
developments compliance with the law. Code of Ordinances 1-58-57. This review is
designed to verify compliance with specific use regulations, development standards, and
other standards and requirements of this code. Id. Department staff will then review the SDP
application and approve it if the requirements are satisfied. Code of Ordinances 1-58-60.
16.

Zoning regulations are among the various land use regulations that the SDP

application process is designed to review.

17.

The Code establishes a zoning map and defines various types of zoning

districts. Code of Ordinances 1-53-1, et seq.

18.

The County does not have an ordinance regulating the use and possession of

wild or exotic animals. See Code of Ordinances Chapters 1-5 (animal control) and 1-53
(zoning). By contrast, other Florida counties have enacted ordinances specifically regulating
wild and exotic animal possession, and almost all of those require a public hearing before
issuance of permits for wild and exotic animal possession.
19.

In contrast to other counties ordinances specifically dealing with wild and

exotic animals, the Countys ordinances only contain provisions for domestic livestock under
the general agriculture zoning category. See Code of Ordinances Chapter 1-53.
20.

The Code establishes zoning district A-2 for General Agriculture. Code of

Ordinances 1-53-2. Permissible use under general agriculture includes agriculture. Code
of Ordinances 1-53-3.1. In turn, agriculture is defined as the use of land for growing crops
and raising domestic animals:
5

Agriculture means the use of land for agricultural purposes, including farming,
dairying, pasturage, apiculture (beekeeping), horticulture (plants), floriculture
(flowers), silviculture (trees), orchards, groves, viticulture (grapes), animal and
poultry husbandry, specialty farms, confined feeding operations and the
necessary accessory uses for packing, processing, treating or storing the
produce; provided, however, that the operation of any such accessory uses shall
be secondary to that of the normal agricultural activities.
Code of Ordinances 1-53-2.2 (emphasis added). The common definition of the phrase
animal husbandry is a branch of agriculture limited to the production and care of only
domestic animals. See Animal Husbandry, MERRIAM-WEBSTER ONLINE, available at
http://www.merriam-webster.com/dictionary/animal%20husbandry (last accessed May 27,
2015).
21.

The Code establishes zoning district A-1 for Agriculture/Conservation.

Code of Ordinances 1-53-2. Permissible use under agriculture/conservation includes

agriculture. Code of Ordinances 1-53-3.1. However, conservation differs from agriculture
in its definition:
Conservation means a use intended to preserve the natural condition of land or
water, including buffering of natural areas from other uses. Conservation uses
include, but are not limited to, preserves for vegetation and wildlife habitat,
habitats for threatened and endangered species or species of special concern,
wetlands, sensitive shorelines, and archaeological and historical sites.
Code of Ordinances 1-53-2.2 (emphasis added). Agricultural processing, defined as an
industrial use specifically associated with producing, harvesting, processing or marketing of
agricultural products, is specifically prohibited in the A-1 district. Code of Ordinances 153-3.1, 1-53-2.2.
22.

According to the Countys Comprehensive Plan, lands classified as

Agriculture/Conservation are the wetland areas within the Countys Agricultural Future
Land Use Category. Because of their ecologically sensitive nature, [n]o industrial
development (including agriculture-related or extraction related) shall be permitted within a
wetland. Furthermore, [n]on-residential development shall be limited to ensure that
wetlands are preserved and that activities that impair the natural function of the wetland are
prohibited. See Hendry County Comprehensive Plan,
6

p.

10-11,

available

at

http://www.hendryfla.net/hendrycountynew/uploads/2013_Comp_Plan_Complete.pdf

(last

accessed May 27, 2015).

23.

Land uses that do not strictly conform to their zoning category require a

variance or special exception. See Code of Ordinances 1-53-3.1, 1-51-5, & 1-51-6. The
landowner, board of county commissioners, or local planning agency may request a variance
or special exception. Code of Ordinances 1-53-5.1 & 1-51-6.1. Review of the application
for a variance or special exception must be considered at a public hearing after due public
notice. Code of Ordinances 1-53-5.2 & 1-51-6.2.
B.

HENDRY COUNTYS SECRETIVE APPROVAL OF SOFLO AGS WILD PRIMATE

BREEDING FACILITY
24.

On information and belief, developers met with County officials in a closed-

door pre-application conference on June 14, 2012 to discuss a proposal to build a facility in
the county that would confine and breed 3,200 macaques to be sold for experimentation in the
biomedical research industry. On information and belief, the attendees of that conference
included developers Rock Aboujaoude and David Rolls on behalf of Rock Enterprises, Inc.,
a real estate broker, a representative of the Hendry County Economic Development Council,
Myra Johnson and Sarah Catala from the Countys Planning and Zoning Department, and two
other unidentified individuals. On information and belief, the meeting did not include
residents living near the proposed development who would be most affected by the facility,
and the County provided no public notice or opportunity for the public to attend to the
meeting.
25.

On information and belief, the purpose of this June 14, 2012 conference was

to help Rock Enterprises determine whether it could proceed with its development plans by
purchasing property and formally applying for a permit for its SDP. One issue discussed in
this meeting was whether the property was properly zoned to allow for the breeding of
thousands of wild and imported primates. Department staff for the County officially
determined that breeding thousands of wild and imported non-human primates for sale to the
biomedical research industry was an allowable use in general agriculture. This cursory
7

determination ignores the fact that animal husbandry is a branch of agriculture involving only
the care and production of domestic animals.
26.

This significant determination that breeding wild primates qualified as animal

husbandry i.e. the production and care of domestic animals for agricultural purposes had
the far-reaching effect of completely cutting the public out of the decision-making process
because it allowed the County to avoid normal public processes such as granting a variance,
granting a special exception, or amending the Code.
27.

SoFlo Ags decision to operate in almost total secrecy further foreclosed the

opportunity for meaningful public participation by concealing the still-unknown identity of

the corporations owner(s) and their competency to oversee the confinement, quarantine, and
breeding of thousands of wild and imported non-human primates that may carry serious
infectious diseases.
28.

On July 18, 2012 nearly one month after the initial conference SoFlo Ag

LLC filed articles of organization with the Florida Secretary of State. It listed its principal
office as a United Parcel Service (UPS) mailbox at 4846 Sun City Center Blvd. #287, Sun
City Center, FL, 33573. It further listed P2B2 LLC as its sole manager.
29.

One day later, P2B2 LLC filed nearly identical articles of incorporation using

the same authorized representative that filed the articles of incorporation for SoFlo Ag. P2B2
listed the same UPS mailbox as its principal address, and named XII LLC as its sole
manager that was also located at the same UPS address. To date, no entity named XII LLC
has ever been registered with the Florida Secretary of State.
30.

In subsequent annual filings, SoFlo Ag and P2B2 moved their headquarters to

another UPS store address in 2013: 5781 Lee Blvd. Unit 208-217, Lehigh Acres, FL 33971.
P2B2 continued to list XII LLC as its manager in subsequent annual filings despite the fact
that no entity named XII LLC has ever been registered. On information and belief, the owners
of SoFlo Ag used P2B2 and XII LLC for the purpose of concealing their identities from the
public.
31.

Around the same time it filed its articles of incorporation in July 2012, SoFlo
8

Ag purchased approximately thirty-four acres of property in western Hendry County along its
border with Lee County. The address for that property is now 2500 Townsend Canal Grade,
LaBelle, FL. The property is located approximately one mile south of State Road 80. The
propertys southern border is immediately adjacent to a residential neighborhood that begins
along the western edge of Hendry County and continues into Lee County.
32.

On information and belief, the only time that SoFlo Ags wild primate facility

was publically discussed was when a member of the public raised the issue at a public meeting
that took place around the time SoFlo Ag bought this property. The Board of County
Commissioners held a public meeting on July 24, 2012. The Board did not place the wild
primate facility on the agenda, but a Florida resident did raise the issue during the public
comment portion of the meeting. According to the Countys minutes for that meeting, Don
Anthony Communications Director for the Animal Rights Foundation of Florida said that
he understood that some developers were considering building a primate facility in the county.
He specifically asked that the Board keep the public informed about the facility and then ceded
the floor. According to the minutes from that board meeting:
[Mr.Anthony] spoke about a Chicago-based company named Pre-Labs which
plans to construct a breeding and holding facility on Wheeler Road for
hundreds, maybe thousands of monkeys. He reported that the monkeys will be
held at the facility and bred for research and testing. He urged the Board to
carefully examine the application and not rush to approve permits. He also
asked the Board to hold a public meeting for this to allow local residents to
comment on the proposal. (emphasis added)
The Board would never satisfy the publics request.
33.

On February 26, 2013, developer Rock Enterprises submitted an SDP

application on behalf of SoFlo Ag to the Planning and Zoning Department. The application
sought permission to improve a 34.2 acre area of land located approximately one mile south
of SR 80 in western Hendry County for the purpose of confining and breeding 3,200
nonhuman primates. On information and belief, the facility will also be used for holding and
quarantining primates although that use was not specifically identified in the application.
34.

Notably, the application did not include any address, telephone number, fax

number, or email address or any contact information whatsoever for SoFlo Ag or its owners;
9

instead, it only included the contact information for developer Rock Enterprises. Moreover,
the owner of SoFlo Ag did not even sign the Letter of Authorization that authorized Rock
Enterprises to act on SoFlo Ags behalf. Instead, the letter was signed by a local attorney hired
by SoFlo Ag. Nowhere does the application indicate who owns or operates SoFlo Ag.
35.

On March 26, 2013, the Department responded to SoFlo Ags application with

a Request for Additional Information (RAI). Among other things, the RAI sought contact
information for SoFlo Ags owner.
36.

On May 17, 2013, Rock Enterprises responded to the RAI. The updated contact

information listed a UPS store mailbox as SoFlo Ags address, and simply reused Rock
Enterprises phone number as SoFlo Ags phone number. Rock Enterprises provided no
additional information about SoFlo Ag or its owners who to this day remain unconfirmed.
37.

On May 23, 2013, the Department sent a letter to Rock Enterprises notifying

the developer that SoFlo Ags SDP was approved. No public notice was provided and no
public meeting was held on the matter before the Department sent the approval letter.
38.

On July 23, 2013 nearly two months later a Hendry County resident who

lives near the proposed wild primate facility sent an email to all of the county commissioners.
In that email, the resident expressed concerns about the safety of the facility and the lack of
transparency in the decision-making process. She asked the commissioners for some
information on what has been requested by [the facility] and where the county stands on the
matter. . . She also asked that the commissioners start including this community on any
future discussions.
39.

On information and belief, nobody replied to the resident. However, her email

sparked an internal discussion culminating in the decision that there would be no public notice
or public meeting to approve the development. Commissioner Karson Turner emailed County
Administrator Charles Chapman and City Attorney Mark Lapp to determine whether any
public involvement was necessary. In turn, they asked an associate planner of the Department,
Sarah Catala, whether a public meeting was necessary. Ms. Catala sent a one-page memo
determining that the facility qualified as general agriculture (A-2) zoning, and that County
10

approval at a public hearing was unnecessary. However, as explained previously, the Code
only contemplates the care and production of domestic animals for agricultural purposes under
general agriculture, and is totally silent about wild and exotic animals such as the thousands
of non-human primates that SoFlo Ag will confine and breed for sale to the biomedical
research industry.
40.

On information and belief, Commissioner Turner, County Administrator

Chapman, and City Attorney Lapp deferred to Ms. Catalas judgment, and no public notice or
public meeting was ever held on the issue.
41.

On information and belief, Rock Enterprises requested a modification to the

SDP to adjust an easement connecting SoFlo Ags property to SR 80. On information and
belief, the County approved that modification on June 9, 2014.
C.

HENDRY COUNTYS SECRETIVE APPROVAL OF THE NEW WILD PRIMATE

BREEDING FACILITY ON THE PANTHER TRACTS PROPERTY
42.

On information and belief, Panther Tracts, LLC owns land at 34200 Doctors

Hammock Road, Immokalee, Florida, at which Primate Products, Inc. operates a primate
breeding facility. Panther Tracts entered into a lease agreement with a Mauritius-based
company called Bioculture to set up a new breeding facility that will house thousands of
imported crab-eating macaques for sale to the pharmaceutical and biomedical research
industries. These animals will join the thousands of primates already housed at the adjacent
Primate Products facility.
43.

On October 25, 2012, Hendry County Planning and Zoning Department staff

held a Site Development Plan Pre-Application meeting with County engineers and Primate
Products representative Ed Marshburn, to consider a Site Development Plan for the Bioculture
facility. The SDP involved the addition of an entirely new facility: two office buildings,
between 12 and 14 pen enclosures, and three barn/storage buildings for confining and
breeding the monkeys.
44.

On information and belief, while termed an expansion, news reports and the

Bioculture lease agreement indicate that the project would constitute a new facility to be
11

operated by Bioculture.
45.

On information and belief, this new facility may be operated under or go by

the name of Immokalee Agrifarms. According to records filed with the Florida Secretary of
State, Immokalee Agrifarms, LLC lists its principal place of business as 34200 B Doctors
Hammock Road, Immokalee, Florida 34142.
46.

At the October 25, 2012 meeting, without any public notice or input, Hendry

County Planning and Zoning Department staff made the official determination that a facility
importing and breeding thousands of wild and imported non-human primates for sale to the
biomedical research industry could be zoned as general agriculture (A-2). They also
determined that such a facility was an allowable use in agriculture/conservation (A-1).
47.

With this official determination from the County, on November 7, 2012,

Panther Tracts authorized agent, R. Quince Sellers, P.E., Senior Project Engineer with
WilsonMiller Stantec, submitted a Site Development Plan Amendment Application, seeking
approval for the construction of the new Bioculture primate breeding facility. The application
was approved on December 10, 2012.
48.

The Countys adoption of a de facto zoning policy for primate facilities

treating the breeding of wild primates for sale to laboratories and research institutions as
animal husbandry (i.e. the production and care of domestic animals) and therefore, as
agriculture or even agriculture/conservation had the far-reaching effect of completely
cutting the public out of the decision-making process. This determination allowed the County
to avoid normal public processes such as granting a variance, granting a special exception, or
amending the Code.
COUNT I
VIOLATION OF THE SUNSHINE LAW
FLA. STAT. 286.011 & FLA. CONST. ART. I 24(b)
49.

The allegations in the preceding paragraphs are re-alleged and incorporated by

reference as if fully set forth herein

12

A.

THE FLORIDA SUNSHINE LAW PROHIBITS DECISION-MAKING BEHIND CLOSED

DOORS.
50.

Floridas Sunshine Law voids official acts that are not properly decided at a

public meeting with reasonable notice:

All meetings of any board or commission . . . of any agency or authority of any
county . . . at which official acts are to be taken are declared to be public
meetings open to the public at all times, and no resolution, rule, or formal action
shall be considered binding except as taken or made at such meeting. The board
or commission must provide reasonable notice of all such meetings.
Fla. Stat. 286.011(1). Moreover, [t]he circuit courts of this state shall have jurisdiction to
issue injunctions to enforce the purposes of [the Sunshine Law] upon application by any
citizen of this state. Fla. Stat. 286.011(2).
51.

The Florida Supreme Court has observed that the Sunshine Law was enacted

in the public interest to protect the public from closed door politics and, as such, the law
must be broadly construed to effect its remedial and protective purpose. Wood, 442 So. 2d
at 938.
52.

In order to achieve this remedial and protective purpose, the Sunshine Law

will apply to any government action that rises to the level of a decision-making function
even if the action is taken by staff or citizen groups rather than a board or commission. See
id. at 939. Courts have found exercise of a decision-making function where a committee
comprised of university staff eliminated certain law school dean candidates from an applicant
pool in closed meetings (Wood, 442 So. 2d at 939), where an ad hoc committee of public
hospital staff members drafted an annual budget in closed meetings (News-Press Publishing
Co. v. Carlson, 410 So. 2d 546 (Fla. App. 1982)), and where a citizens planning committee
proposed revisions to a towns zoning ordinances in closed meetings (Palm Beach v.
Gradison, 296 So. 2d 473 (Fla. 1974)). Thus, the proper focus is the nature of the act
performed, not on the make-up of the committee in determining whether the Sunshine Law
requires a public meeting. Wood, 442 So.2d at 939.
B.

ANIMAL HUSBANDRY ALLOWED IN A-1 AND A-2 ZONING DOES NOT INCLUDE WILD
PRIMATE BREEDING FACILITIES.
13

53.

The Hendry County Code of Ordinances establishes a zoning map and defines

various types of zoning districts. Code of Ordinances 1-53-1, et seq.

54.

The County does not have an ordinance regulating the use and possession of

wild or exotic animals. See Code of Ordinances Chapters 1-5 (animal control) and 1-53
(zoning). By contrast, other Florida counties have enacted ordinances specifically regulating
wild and exotic animal possession, and almost all of those require a public hearing before
issuance of permits for wild and exotic animal possession.
55.

In contrast to other counties ordinances specifically dealing with wild and

exotic animals, the Countys ordinances only contain provisions for domestic livestock under
the general agriculture zoning category. See Code of Ordinances Chapter 1-53.
56.

The Code establishes zoning district A-2 for General Agriculture. Code of

Ordinances 1-53-2. Permissible use under general agriculture includes agriculture. Code
of Ordinances 1-53-3.1. In turn, agriculture is defined as the use of land for growing crops
and raising domestic animals:
Agriculture means the use of land for agricultural purposes, including farming,
dairying, pasturage, apiculture (beekeeping), horticulture (plants), floriculture
(flowers), silviculture (trees), orchards, groves, viticulture (grapes), animal and
poultry husbandry, specialty farms, confined feeding operations and the
necessary accessory uses for packing, processing, treating or storing the
produce; provided, however, that the operation of any such accessory uses shall
be secondary to that of the normal agricultural activities.
Code of Ordinances 1-53-2.2 (emphasis added). The common definition of the phrase
animal husbandry is limited to the production and care of only domestic animals. See Animal
Husbandry,

MERRIAM-WEBSTER

ONLINE,

available

at

http://www.merriam-

webster.com/dictionary/animal%20husbandry (last accessed May 27, 2015).

57.

The Code establishes zoning district A-1 for Agriculture/Conservation.

Code of Ordinances 1-53-2. Permissible use under agriculture/conservation includes

agriculture. Code of Ordinances 1-53-3.1. However, conservation means:
A use intended to preserve the natural condition of land or water, including
buffering of natural areas from other uses. Conservation uses include, but are
not limited to, preserves for vegetation and wildlife habitat, habitats for
threatened and endangered species or species of special concern, wetlands,
14

sensitive shorelines, and archaeological and historical sites.

Code of Ordinances 1-53-2.2 (emphasis added). Agricultural processing, defined as an
industrial use specifically associated with producing, harvesting, processing or marketing of
agricultural products, is specifically prohibited in the A-1 district. Code of Ordinances 153-3.1, 1-53-2.2.
58.

According to the Countys Comprehensive Plan, lands classified as

Agriculture/Conservation are the wetland areas within the Countys Agricultural Future
Land Use Category. Because of their ecologically sensitive nature, [n]o industrial
development (including agriculture-related or extraction related) shall be permitted within a
wetland. Furthermore, [n]on-residential development shall be limited to ensure that
wetlands are preserved and that activities that impair the natural function of the wetland are
prohibited. See Hendry County Comprehensive Plan,

p.

10-11,

available

http://www.hendryfla.net/hendrycountynew/uploads/2013_Comp_Plan_Complete.pdf

at
(last

accessed May 27, 2015).

59.

Land uses that do not strictly conform to their zoning category require a

variance or special exception. See Code of Ordinances 1-53-3.1, 1-51-5, & 1-51-6. The
landowner, board of county commissioners, or local planning agency may request a variance
or special exception. Code of Ordinances 1-53-5.1 & 1-51-6.1. Review of the application
for a variance or special exception must be considered at a public hearing after due public
notice. Code of Ordinances 1-53-5.2 & 1-51-6.2.
60.

Neither the SoFlo Ags primate breeding facility nor the Bioculture primate

breeding facility qualify as agriculture under the plain language definition of animal
husbandry because the operations of each facility will involve wild rather than domestic
animals.
61.

The Bioculture primate breeding facility also cannot be classified as

agriculture/conservation. Quarantining, confining, and breeding wild primates in

sophisticated multi-building compounds is not a use intended to preserve the natural
condition of land or water, but the exact opposite.
15

62.

Indeed, both facilities will have a significantly greater impact on

neighborhoods and the Citizens than an agriculture operation involving domestic animals.
Management of the thousands of wild primates at each facility will require highly specialized
expertise to properly care for the primates, clean up after the primates, keep workers safe from
disease transmission, and protect the public from escaped primates and ensuing disease
transmission. On information and belief, each facility will have thousands of primates that
can potentially transmit a wide array of serious and fatal diseases to humans such as Ebola,
Herpes B, tuberculosis, and parasites.
63.

Because of expertise necessary to protect vital public interests, SoFlo Ag and

Bioculture will be subject to a very specialized set of regulations under both state and federal
law to ensure that these vital public interests are adequately protected. The Florida Fish &
Wildlife Commission, Centers for Disease Control, U.S. Fish and Wildlife Services, and U.S.
Department of Agriculture collectively regulate the import, possession, management,
breeding, sale, and quarantine of these wild and exotic nonhuman primates.
64.

This public safety risk will have a significant impact on the surrounding

community. Primates have escaped from breeding facilities in Florida in the past and have
injured people, and in the ensuing lawsuits, courts have affirmed that the primates are indeed
wild animals. According to one published court of appeal opinion, a macaque escaped from a
Florida breeding facility and bit a person. Scorza v. Martinez, 683 So.2d 1115, 1115-1117
(Fla. 4th DCA 1996). The court held that the breeder was strictly liable for damages because
macaques are wild animals, and conveyed that [the] monkeys are a mildly aggressive breed
known for carrying the Herpes B virus. Id. at 1116-1117.
65.

On information and belief, SoFlo Ag and Bioculture will have thousands of

the same primates as the species that escaped in Scorza i.e. macaques. In order to protect
public health of the community, SoFlo Ag and Bioculture will be required to utilize
specialized expertise to comply with myriad technical regulations by the Florida Fish and
Wildlife Commission, Centers for Disease Control, U.S. Fish and Wildlife Service, and U.S.
Department of Agriculture.
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66.

Thus, the breeding of wild primates that will take place at the SoFlo Ag and

Bioculture facilities does not qualify as general agriculture (A-2) zoning under the plain text
definition of the phrase animal husbandry because the primates are wild rather than
domestic animals. Neither does the Bioculture facility qualify as agriculture/conservation (A1) because it is a use fundamentally inconsistent with the preservation of wetlands and the
conservation of land and water in its natural state. Moreover, operation of the wild primate
facilities will have significantly greater impacts on the local community than a domestic
animal husbandry operation due to public health concerns.
67.

Because SoFlo Ags and Biocultures wild primate facilities do not qualify as

agriculture or agriculture/conservation, the County should have considered approval of each

development at a public meeting.
C.

THE COUNTY ENGAGED IN DECISION-MAKING BEHIND CLOSED DOORS IN

VIOLATION OF THE FLORIDA SUNSHINE LAW.
68.

The Countys failure to provide public notice or hold a public meeting on the

issue violated the Sunshine Law because its approval of each project rose to the level of a
decision-making function conducted behind closed doors.
69.

Whereas other Florida counties have enacted ordinances dealing with wild and

exotic animal possession, the Hendry County Code is silent about the permissibility of
operating facilities like SoFlo Ag and Bioculture that confine, quarantine, and transport
thousands of wild non-human primates. Instead, the Code only addresses the care and
production of domestic animals by including animal husbandry in the list of acceptable land
uses in areas zoned as general agriculture (A-2).
70.

The County should have filled this zoning policy void with some kind of an

official action at a public meeting. For example, it could enact a wild and exotic animal
ordinance like other Florida counties, or it could have considered granting a variance or
special exception from the limitation of domestic animal production under general agriculture
and agriculture/conservation zoning.
71.

With respect to the SoFlo Ag facility, instead of engaging the public, the
17

County staff, in collusion with at least one County Commissioner (Commissioner Turner),
engaged in a high-level decision-making function when they determined that SoFlo Ags wild
primate breeding facility qualified as animal husbandry for purposes of agricultural zoning at
the pre-application conference meeting in July 2012, through an SDP approval letter in May
2013, and by memo and email exchange on July 23, 2013.
72.

On information and belief, each of these three actions occurred behind closed

doors and the public received no prior notice of these activities.

73.

With respect to the Bioculture facility, instead of engaging the public, County

staff engaged in high-level decision-making when they improperly shoehorned the new
primate breeding operation into the agriculture and agriculture/conservation zoning categories
at the pre-application conference meeting on October 25, 2012, and through the Site
Development Plan Amendment approval letter on December 10, 2012.
74.

The Board and Department effectively created new zoning policy, engaging in

officials acts, when they secretly expanded the scope of agriculture and animal husbandry for
purposes of general agriculture (A-2) zoning beyond the plain definition that is limited to the
care and production of domestic animals. As the Attorney General of the State of Florida has
noted, rezoning to a different classification may be accomplished as effectively by changing
the content of the classification as by shifting the classification category in which the
particular property is place. 1980 Fla. AG LEXIS 1, 5 (1980), quoting 8 MCQUILLIN ZONING
25.93 (1976).
75.

In evading the public meeting requirement by contorting the classification of

agriculture and agriculture/conservation beyond all reason, in order to avoid public

hearings, the County performed the functional equivalent of granting variances or amending
its ordinance, but without giving the Citizens any meaningful opportunity to participate in the
decision-making process with profound impacts on their community and way of life.
76.

The Countys determination that both the SoFlo Ag and Bioculture facilities

qualified as agriculture effectively created new zoning policy that rose to the level of a
decision-making function under the Sunshine Law. Accordingly, those determinations were
18

subject to the public notice and public meeting requirement of the Sunshine Law. Because
there was no public notice or public meeting on the issues, the Countys approval of SoFlo
Ags SDP and the Bioculture SDP Amendment are void, and the Citizens have a right to
injunctive and declaratory relief against County.
PRAYER FOR RELIEF
Citizens therefore request that the Court grant the following relief:
1.

Declare that Hendry Countys approval of SoFlo Ags SDP is void

because it was not considered at a public hearing after adequate public notice as required
by the Sunshine Law;
2.

Issue an injunction mandating Hendry County to rescind its approval of

SoFlo Ags SDP;

3.

Declare that Hendry Countys approval of Biocultures SDP Amendment

is void because it was not considered at a public hearing after adequate public notice as
required by the Sunshine Law;
4.

Issue an injunction mandating Hendry County to rescind its approval of

Biocultures SDP Amendment;

5.

Issue an injunction prohibiting Hendry County from approving future

wild primate facilities in general agriculture or agriculture/conservation zoning without

first conducting a public hearing;
6.

Award Citizens all costs and reasonable attorneys fees; and

7.

Grant other and further relief as the Court deems just and proper.

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Respectfully submitted,
/s Justine Thompson Cowan______
Justine Thompson Cowan
FL Bar No. 98806
cowan@cowannonprofits.com
COWAN CONSULTING FOR NONPROFITS
525 Richmond Street
Orlando, FL 32806
(404) 274-0179
Christopher A. Berry, Esq.
CA Bar No. 283987
ANIMAL LEGAL DEFENSE FUND
170 E. Cotati Avenue
Cotati, CA 94931
(707) 795-2533
Admitted Pro Hac Vice
Kelsey Eberly, Esq.
CA Bar No. 301025
ANIMAL LEGAL DEFENSE FUND
170 E. Cotati Avenue
Cotati, CA 94931
(707) 795-2533
Admitted Pro Hac Vice
Attorneys for Plaintiffs