Filing # 20295767 Electronically Filed 11/06/2014 03:44:34 PM

IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT

IN AND FOR HENDRY COUNTY, FLORIDA

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WILLIAM STEPHENS, CAROL GREY, and

KEELY CINKOTA,
Plaintiffs,

v.

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Case No.:

HENDRY COUNTY,
Defendant.

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COMPLAINT FOR INJUNCTIVE RELIEF AND DECLARATORY JUDGMENT

1.

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

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Section 24(b) and 286.011 of Florida Law, commonly referred to as Floridas Sunshine
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Law, seeking judicial relief from Hendry Countys evasion of public scrutiny when it
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approved a highly controversial facility owned by a mysterious entity called SoFlo Ag LLC
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that will reportedly confine, quarantine, and breed thousands of wild and imported non-human
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primates (macaques) in a rural residential neighborhood. Unlike domestic livestock, non18

human primates are known carriers of a wide array of serious infectious diseases such as
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Ebola, Herpes B, tuberculosis, and parasites that may be transmitted to humans. In fact,
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macaques have been responsible for outbreaks of an Ebola strain in United States research
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facilities, and macaques have also escaped from other Florida breeding facilities in the past
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resulting in bites and other injuries. Moreover, the operation of the facility will entail a
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substantial increase in noise, traffic, and other activity in degradation of the neighborhoods
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rural residential character that the Citizens have thus far enjoyed.
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2.

Despite the radical impact that the SoFlo Ag facility will have on the

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neighborhood, the County met behind closed doors with special interests in favor of the
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facility while taking every possible measure to impede public participation. The County failed
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-1COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

to hold a public meeting on its decision to approve the SoFlo Ag primate facility, and failed

to provide any notice about its impending decision to approve the development even though

concerned residents repeatedly asked to be involved in the decision-making process.

3.

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

issue violated the Sunshine Law because its approval of the facility rose to the level of a

decision-making function 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 a facility like SoFlo Ag that

confines, quarantines, and transports thousands of wild non-human primates. The Code is

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therefore necessarily silent about critical issues such as whether such facilities may be built

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next to residential neighborhoods, and whether other conditions must be satisfied such as

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confirming the competency of the owners to manage such a facility.

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4.

Despite the gravity of the decision before it, the County did not engage in a

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fair and open decision-making process as mandated by law. For example, the County could

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have amended its ordinance to address wild and exotic animal facilities like SoFlo Ag, or

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granted a variance from the general agriculture zoning. Each of these approaches would have

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involved the public most impacted by the project in the process. Instead, County staff chose

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the most secretive route by determining at a closed-door meeting that they would simply bend

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the definition of animal husbandry (i.e. the care and production of domestic animals) to

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include the care and production of infectious wild and imported non-human primates so they

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could categorize the facility as general agriculture and avoid taking any official action on the

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issue. See Hendry County Code of Ordinances 1-53-2.2 (general agriculture includes

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animal husbandry); Animal Husbandry, MERRIAM-WEBSTER ONLINE, available at

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http://www.merriam-webster.com/dictionary/animal%20husbandry (last accessed October

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20, 2014) (defining animal husbandry as the care and production of domestic animals.)

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5.

County staff performed a decision-making function subject to the Sunshine

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Law by effectively creating zoning policy without any public input in regards to confining,

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quarantining, and breeding thousands of wild and imported primates next to residential
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neighborhoods. This decision-making function was performerd with special interests behind

closed doors without public notice and without a public meeting in violation of the Sunshine

Law. Accordingly, the Citizens hereby ask the court to declare that the Countys approval of

SoFlo Ags Site Development Plan (SDP) is void ab initio, and to compel the County to

consider approval of the SDP at a public hearing after providing reasonable public notice.
JURISDICTION

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6.

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.

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7.

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

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8.

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

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

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

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in Hendry County. Mr. Stephens lives in the residential neighborhood abutting the proposed

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wild primate facility. Mr. Stephens is concerned about the threat of disease transmission from

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primates to humans, noise, and a negative impact on property values. Mr. Stephens never

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received any notice from the County about the proposed facility before approval or felt he had

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the opportunity to participate in the decision-making process.

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10.

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

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Hendry County. Ms. Grey lives in the residential neighborhood abutting the proposed primate

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facility that will house the wild macaques. Ms. Grey is concerned about the threat of disease

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transmission from these macaques to humans. She is also concerned about how the facility

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will change the rural character of her neighborhood because of heavier traffic and other

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activities associated with the non-human primate facility. Ms. Grey never received any notice

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from the County about the proposed facility or felt she had the opportunity to participate in
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the decision-making process.

11.

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 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 the proposed facility or felt she had the opportunity to participate in the

decision-making process.

12.

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

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Countys Board of County Commissioners (Board) is responsible for, among other things,

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approving variances and special exceptions to the zoning code, and amending the zoning code

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as needed. The Countys Planning and Zoning Department (Department) is responsible for,

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among other things, approving Site Development Plans (SDP). As government entities, the

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Board and Department must generally conduct all decision-making functions at open public

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meetings after reasonable notice. See 286.011, Fla. Stat.; Wood v. Marston, 442 So. 2d 934

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(Fla. 1983) (staff committee that screened and eliminated candidates for an open law school

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dean position were required to hold public meetings).

LEGAL AND FACTUAL BACKGROUND

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A.

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HENDRY COUNTY SITE PLAN AND ZONING REQUIREMENTS

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The Code establishes various requirements for persons seeking to develop

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

land.

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

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the Department will review proposed developments at a level of detail showing specific

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arrangement of buildings in relation to each other to allow a detailed examination of the

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developments compliance with the law. Code of Ordinances 1-58-57. This review is

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designed to verify compliance with specific use regulations, development standards, and

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other standards and requirements of this code. Id. Department staff will then review the SDP
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application and approve it if the requirements are satisfied. Code of Ordinances 1-58-60.
15.

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

application process is designed to review.

16.

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

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

17.

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

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issuance of permits for wild and exotic animal possession.

18.

In contrast to other counties ordinances specifically dealing with wild and

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exotic animals, the Countys ordinances only contain provisions for domestic livestock under

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the general agriculture zoning category. See Code of Ordinances Chapter 1-53.

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19.

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

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Ordinances 1-53-2. Permissible use under general agriculture includes agriculture. Code

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of Ordinances 1-53-3.1. In turn, agriculture is defined as the use of land for growing crops

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and raising domestic animals:

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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.

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Code of Ordinances 1-53-2.2 (emphasis added). The common definition of the phrase
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animal husbandry is limited to the production and care of only domestic animals. See Animal
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Husbandry,

MERRIAM-WEBSTER

ONLINE,

available

at

http://www.merriam-

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webster.com/dictionary/animal%20husbandry (last accessed November 6, 2014).

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20.

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

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variance or special exception. See Code of Ordinances 1-53-3.1, 1-51-5, & 1-51-6. The
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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

21.

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

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biomedical research industry. On information and belief, the attendees of that conference

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included developers Rock Aboujaoude and David Rolls on behalf of Rock Enterprises, Inc.,

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a real estate broker, a representative of the Hendry County Economic Development Council,

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Myra Johnson and Sarah Catala from the Countys Planning and Zoning Department, and two

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other unidentified individuals. On information and belief, the meeting did not include

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residents living near the proposed development who would be most affected by the facility,

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and the County provided no public notice or opportunity for the public to attend to the

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meeting.

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22.

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

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to help Rock Enterprises determine whether it could proceed with its development plans by

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purchasing property and formally applying for a permit for its SDP. One issue discussed in

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this meeting was whether the property was properly zoned to allow for the breeding of

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thousands of wild and imported primates. Department staff for the County officially

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determined that breeding thousands of wild and imported non-human primates was an

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allowable use in general agriculture. This cursory determination ignores the fact that animal

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husbandry for agriculture purposes is limited by common definition to the care and production

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of domestic animals.

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This significant determination that breeding wild animals qualified as animal

husbandry i.e. the production and care of domestic animals had the far-reaching effect of
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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.

24.

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.

25.

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

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LLC filed articles of organization with the Florida Secretary of State. It listed its principal

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office as a United Parcel Service (UPS) mailbox at 4846 Sun City Center Blvd. #287, Sun

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City Center, FL, 33573. It further listed P2B2 LLC as its sole manager.

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26.

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

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the same authorized representative that filed the articles of incorporation for SoFlo Ag. P2B2

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listed the same UPS mailbox as its principal address, and named XII LLC as its sole

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manager that was also located at the same UPS address. To date, no entity named XII LLC

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has ever been registered with the Florida Secretary of State.

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27.

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

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another UPS store address in 2013: 5781 Lee Blvd. Unit 208-217, Lehigh Acres, FL 33971.

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P2B2 continued to list XII LLC as its manager in subsequent annual filings despite the fact

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that no entity named XII LLC has ever been registered. On information and belief, the owners

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of SoFlo Ag used P2B2 and XII LLC for the purpose of concealing their identities from the

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public.

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28.

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

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Ag purchased approximately thirty-four acres of property in western Hendry County along its

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border with Lee County. The address for that property is now 2500 Townsend Canal Grade,

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LaBelle, FL. The property is located approximately one mile south of State Road 80. The

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propertys southern border is immediately adjacent to a residential neighborhood that begins

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along the western edge of Hendry County and continues into Lee County.
29.

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.

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He specifically asked that the Board keep the public informed about the facility and then ceded

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the floor. According to the minutes from that board meeting:

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[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.
30.

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

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application on behalf of SoFlo Ag to the Planning and Zoning Department. The application

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sought permission to improve a 34.2 acre area of land located approximately one mile south

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of SR 80 in western Hendry County for the purpose of confining and breeding 3,200

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nonhuman primates. On information and belief, the facility will also be used for holding and

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quarantining primates although that use was not specifically identified in the application.

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31.

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

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

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instead, it only included the contact information for developer Rock Enterprises. Moreover,

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the owner of SoFlo Ag did not even sign the Letter of Authorization that authorized Rock

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Enterprises to act on SoFlo Ags behalf. Instead, the letter was signed by a local attorney hired

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by SoFlo Ag. Nowhere does the application indicate who owns or operates SoFlo Ag.
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32.

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.

33.

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.

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34.

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.
35.

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

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lives near the proposed wild primate facility sent an email to all of the county commissioners.

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In that email, the resident expressed concerns about the safety of the facility and the lack of

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transparency in the decision-making process. She asked the commissioners for some

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information on what has been requested by [the facility] and where the county stands on the

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matter. . . She also asked that the commissioners start including this community on any

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future discussions.

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36.

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

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sparked an internal discussion culminating in the decision that there would be no public notice

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or public meeting to approve the development. Commissioner Karson Turner emailed County

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Administrator Charles Chapman and City Attorney Mark Lapp to determine whether any

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public involvement was necessary. In turn, they asked an associate planner of the Department,

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Sarah Catala, whether a public meeting was necessary. Ms. Catala sent a one-page memo

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determining that the facility qualified as general agriculture (A-2) zoning, and that County

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approval at a public hearing was unnecessary. However, as explained previously, the Code

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only contemplates the care and production of domestic animals under general agriculture, and

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is totally silent about wild and exotic animals such as the thousands of non-human primates

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that SoFlo Ag will confine.

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37.

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.

38.

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.

COUNT I

VIOLATION OF THE SUNSHINE LAW

FLA. STAT. 286.011 & FLA. CONST. ART. I 24(b)

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39.

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

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reference as if fully set forth herein

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A.

THE FLORIDA SUNSHINE LAW PROHIBITS DECISION-MAKING BEHIND CLOSED

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DOORS.

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40.

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

public meeting with reasonable notice:

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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.

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Fla. Stat. 286.011(1). Moreover, [t]he circuit courts of this state shall have jurisdiction to

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issue injunctions to enforce the purposes of [the Sunshine Law] upon application by any

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citizen of this state. Fla. Stat. 286.011(2).

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41.

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

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in the public interest to protect the public from closed door politics and, as such, the law

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must be broadly construed to effect its remedial and protective purpose. Wood, 442 So. 2d

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at 938.

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42.

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

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will apply to any government action that rises to the level of a decision-making function

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even if the action is taken by staff or citizen groups rather than a board or commission. See
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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.

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B.

ANIMAL HUSBANDRY ALLOWED

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PRIMATE BREEDING FACILITIES.

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43.

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IN

A-2 ZONING DOES NOT INCLUDE WILD

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.

44.

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

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wild or exotic animals. See Code of Ordinances Chapters 1-5 (animal control) and 1-53

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(zoning). By contrast, other Florida counties have enacted ordinances specifically regulating

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wild and exotic animal possession, and almost all of those require a public hearing before

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issuance of permits for wild and exotic animal possession.

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45.

In contrast to other counties ordinances specifically dealing with wild and

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exotic animals, the Countys ordinances only contain provisions for domestic livestock under

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the general agriculture zoning category. See Code of Ordinances Chapter 1-53.

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46.

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

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Ordinances 1-53-2. Permissible use under general agriculture includes agriculture. Code

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of Ordinances 1-53-3.1. In turn, agriculture is defined as the use of land for growing crops

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and raising domestic animals:

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27
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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
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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,

webster.com/dictionary/animal%20husbandry (last accessed November 6, 2014).

47.

MERRIAM-WEBSTER

ONLINE,

available

at

http://www.merriam-

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

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for a variance or special exception must be considered at a public hearing after due public

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notice. Code of Ordinances 1-53-5.2 & 1-51-6.2.

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48.

SoFlo Ags primate breeding facility does not qualify as agriculture under the

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plain language definition of animal husbandry because operation of the SoFlo Ag facility

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will involve wild rather than domestic animals.

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49.

In fact, the SoFlo Ag facility will have a significantly greater impact on the

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neighborhood and Citizens than an agriculture operation involving domestic animals.

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Management of the thousands of wild primates at the SoFlo Ag facility will require highly

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specialized expertise to properly care for the primates, clean up after the primates, keep

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workers safe from disease transmission, and protect the public from escaped primates and

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ensuing disease transmission. On information and belief, SoFlo Ag will have thousands of

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macaques that can potentially transmit a wide array of serious and fatal diseases to humans

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such as Ebola, Herpes B, tuberculosis, and parasites.

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50.

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

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be subject to a very specialized set of regulations under both state and federal law to ensure

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that these vital public interests are adequately protected. The Florida Fish & Wildlife

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Commission, Centers for Disease Control, U.S. Fish and Wildlife Services, and U.S.

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Department of Agriculture collectively regulate the import, possession, management,

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breeding, sale, and quarantine of these wild and exotic nonhuman primates.
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51.

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.

52.

On information and belief, SoFlo Ag will have thousands of the same primates

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as the species that escaped in Scorza i.e. macaques. In order to protect public health of the

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community, SoFlo Ag will be required to utilize specialized expertise to comply with the

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myriad of technical regulations by the Florida Fish and Wildlife Commission, Centers for

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Disease Control, U.S. Fish and Wildlife Service, and U.S. Department of Agriculture.

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53.

Thus, SoFlo Ags breeding of wild primates does not qualify as general

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agriculture (A-2) zoning under the plain text definition of the phrase animal husbandry

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because the primates are wild rather than domestic animals. Moreover, operation of the wild

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primate facility will have a significantly greater impact on the local community than a

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domestic animal husbandry operation due to public health concerns.

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54.

Because SoFlo Ags wild primate facility does not qualify as agriculture, the

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County should have considered approval of the development at a public meeting .

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C.

THE COUNTY ENGAGED IN DECISION-MAKING BEHIND CLOSED DOORS IN

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VIOLATION OF THE FLORIDA SUNSHINELAW.

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55.

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

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issue violated the Sunshine Law because its approval of the facility rose to the level of a

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decision-making function conducted behind closed doors.

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56.

Whereas other Florida counties have enacted ordinances dealing with wild and

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exotic animal possession, the Hendry County Code is silent about the permissibility of

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operating a facility like SoFlo Ag that confines, quarantines, and transports thousands of wild
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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).

57.

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

zoning.

58.

Instead of engaging the public, the County staff, in collusion with at least one

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County Commissioner (Commissioner Turner), engaged in a high-level decision-making

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function when they determined that SoFlo Ags wild primate breeding facility qualified as

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animal husbandry for purposes of agricultural zoning at the pre-application conference

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meeting in July 2012, through an SDP approval letter in May 2013, and by memo and email

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exchange on July 23, 2013.

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59.

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

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

60.

The Board and Department effectively created new zoning policy qualifying

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as a decision-making function when they secretly expanded the scope of agriculture and

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animal husbandry for purposes of general agriculture (A-2) zoning beyond the plain definition

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that is limited to the care and production of domestic animals. As the Attorney General of the

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State of Florida has noted, "rezoning to a different classification may be accomplished as

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effectively by changing the content of the classification as by shifting the classification

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category in which the particular property is place." 1980 Fla. AG LEXIS 1, 5 (1980), quoting

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8 MCQUILLIN ZONING 25.93 (1976).

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61.

In evading the public meeting requirement by simply bending the classification

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of agriculture to avoid a public hearing, the County performed the functional equivalent of

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granting a variance or amending its ordinance, but without giving the Citizens any meaningful

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opportunity to participate in the decision-making process with profound impacts on their

-14SUNSHINE LAW COMPLAINT

community and way of life.

62.

The Countys determination that SoFlo Ags facility qualified as animal

husbandry effectively created new zoning policy that rose to the level of a decision-making

function under the Sunshine Law. Accordingly, that determination was subject to the public

notice and public meeting requirement of the Sunshine Law. Because there was no public

notice or public meeting on the issue, the Countys approval of SoFlo Ags SDP is void, and

the Citizens have a right to injunctive and declaratory relief against County.
PRAYER FOR RELIEF

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Citizens therefore request that the Court grant the following relief:

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1.

Declare that Hendry Countys approval of SoFlo Ags SDP is void because it

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was not considered at a public hearing after adequate public notice as required by the Sunshine

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Law;

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2.

Issue an injunction mandating Hendry County to rescind its approval of SoFlo

Ags SDP;
3.

Issue an injunction prohibiting Hendry County from approving future wild

primate facilities in general agriculture zoning without first conducting a public hearing;

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4.

Award Citizens all costs and reasonable attorneys fees; and

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5.

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

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Dated: November 6, 2014

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Respectfully submitted,

___/s/ Justine Cowan __________________

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Justine Thompson Cowan

Florida Bar Number 98806
cowan@cowannonprofits.com
COWAN CONSULTING FOR NONPROFITS,
PLLC
525 Richmond Street
Orlando, FL 32806
(404) 274-0179
Attorney for Plaintiffs
_/s/ Christopher Berry__________________
Christopher A. Berry, Esq.
CA Bar No. 283987
ANIMAL LEGAL DEFENSE FUND
170 E. Cotati Avenue
Cotati, CA 94931
(707) 795-2533

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Pro hac vice application pending

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Attorney for Plaintiffs

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-16SUNSHINE LAW COMPLAINT