               NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
                      MOTION AND, IF FILED, DETERMINED


                                               IN THE DISTRICT COURT OF APPEAL
                                               OF FLORIDA
                                               SECOND DISTRICT

THE LAKE HAMILTON LAKESHORE                    )
OWNERS ASSOCIATION, INC., a Florida            )
not-for-profit corporation, on behalf of its   )
members,                                       )
                                               )
              Appellant,                       )
                                               )
v.                                             )      Case No. 2D14-5611
                                               )
WAYNE L. NEIDLINGER, d/b/a Captain             )
Fred's Airboat Nature Tours, and LAKE          )
HAMILTON COMMERCE & STORAGE                    )
CENTER, INC., a Florida corporation,           )
                                               )
              Appellees.                       )
                                               )

Opinion filed December 30, 2015.

Appeal from the Circuit Court for Polk
County; John Radabaugh, Judge.

Douglas A. Lockwood, III, and Matthew W.
Prisco of Straughn & Turner, P.A., Winter
Haven, for Appellant.

Daniel P. Rooney of Law Office of Allan L.
Casey, Winter Haven, for Appellee
Wayne L. Neidlinger.

No appearance for Lake Hamilton
Commerce & Storage Center, Inc.

CASANUEVA, Judge.

              The Lake Hamilton Lakeshore Owner's Association, Inc., ("the

Association") appeals an order dismissing with prejudice its two-count complaint against
Wayne L. Neidlinger, d/b/a Captain Fred's Airboat Nature Tours ("Captain Fred's"), and

Lake Hamilton Commerce & Storage Center, Inc.1 In its complaint, the Association

asked the trial court to declare Captain Fred's airboat activities a nuisance and to enter

an injunction prohibiting such airboat activities on Lake Hamilton. The trial court

dismissed the complaint based on its finding that state law preempts what can be

considered a nuisance pertaining to airboat noise. We conclude that the trial court

erred in dismissing the complaint and reverse.

                              I. FACTUAL BACKGROUND

              The Association alleged in its complaint that Captain Fred's operates

commercial airboat tours on Lake Hamilton that generate noise levels up to 100-110 dB,

which noise levels are extreme and "create an unreasonable loss of enjoyment for

numerous residents around Lake Hamilton, as evidenced by a petition of over 380

persons situated on or near Lake Hamilton who requested that the Lake Hamilton Town

Council enact an ordinance which would prohibit said use." The complaint noted that

such noise levels would exceed a noise level ordinance if Polk County were to adopt

section 327.65, Florida Statutes (2013).

              The complaint alleged that Captain Fred's two airboats are operated up to

ten hours per day every day of the week for several months during Captain Fred's peak

season. The complaint further alleged that about eighty percent of Lake Hamilton's

shoreline is zoned residential and that Captain Fred's airboats travel within 1500 feet or

less of over 200 homes on every trip.




              1
               A default was entered against Lake Hamilton Commerce & Storage
Center, Inc., after it failed to respond to the complaint.
                                           -2-
              Captain Fred's moved to dismiss the complaint alleging, among other

things, that an activity which the law authorizes cannot be a nuisance. The trial court

agreed, finding that the activity of Captain Fred's is authorized by law, and therefore, it

cannot be a nuisance. This ruling was incorrect.

                   II. PRIVATE CAUSE OF ACTION FOR NUISANCE

              An "activity can constitute a judicially abatable nuisance notwithstanding

full compliance with either legislative mandate or administrative rule." State ex rel.

Shevin v. Tampa Elec. Co., 291 So. 2d 45, 48 (Fla. 2d DCA 1974). In Shevin, the

appellant sought injunctive relief against Tampa Electric Company (TECO) alleging that

TECO's generating plants released discharges containing sulfur dioxide, sulfur trioxide,

and other deleterious and noxious chemicals. Id. at 46. This court held that there was

"nothing for an agency to decide, and the primary jurisdiction doctrine is inapplicable

since the legal effect of the complained of activity, together with an appropriate remedy,

is peculiarly a judicial matter." Id. at 48. The Shevin court reasoned that if the

complained of conditions exist, the determination regarding whether they constitute a

nuisance is a matter of law, and any question regarding whether the conditions comply

with an agency's regulations is irrelevant to the court's determination of a nuisance. Id.

Therefore, to the extent that the trial court also ruled that it did not have primary

jurisdiction in the matter, this ruling was incorrect. If the complained of conditions exist,

the trial court was required to determine if they constitute a nuisance as a matter of law,

and compliance with an agency's regulations is irrelevant to the court's determination of

a nuisance. See id.

              This court reaffirmed the Shevin holding in Erwin v. Alvarez, 752 So. 2d

1261, 1262 (Fla. 2d DCA 2000). In Erwin, the appellants alleged that the noise created


                                             -3-
by the appellees' chickens constituted a nuisance. Id. Relying on Shevin, this court

reversed the trial court's ruling that, as long as the appellees limit the number of

chickens to be in compliance with the county ordinance, there was no private nuisance.

Id.; see also Barfield Instrument Corp. v. Sea View Indus., Inc., 102 So. 2d 740, 741

(Fla. 3d DCA 1958) ("An unlawful use is not essential to the existence of an actionable

nuisance.").

                The First District has also applied this reasoning in a case involving a

rowing center, noting that

                mere compliance with the zoning ordinance will not, in and of
                itself, absolve a property owner from any claim of nuisance.
                A court examining a claim of nuisance must focus not only
                upon legality, but also upon reasonableness of the use, "as
                such use affects the public and private rights of others" and
                "must of necessity be determined from the facts and
                circumstances of particular cases as they arise." Cason v.
                Fla. Power Co., 74 Fla. 1, 76 So. 535, 536 (1917) (emphasis
                added).

Saadeh v. Stanton Rowing Found., Inc., 912 So. 2d 28, 32 (Fla. 1st DCA 2005).

                Consequently, the airboat activity of Captain Fred's may constitute a

judicially recognized nuisance even if such activity is authorized by statute, regulation,

or ordinance.

                We note that the trial court cited only one law establishing restrictions on

the operation of airboats. Polk County Ordinance 96-14 provides that "[n]o person shall

operate an airboat between the hours of 10:00 p.m. and 7:00 a.m. Sunday through

Thursday and 12:00 midnight and 6:00 a.m. Friday and Saturday, Memorial Day,

Independence Day, and Labor Day." The other relevant portion of the ordinance

provides:

                No person shall operate an airboat above an idle speed
                within five hundred (500) feet of a residence. . . . The

                                             -4-
              distance setback from residences in this subsection shall not
              apply during the hours of 8:00 a.m. and 5:00 p.m. Monday
              through Saturday to the use of airboats by commercial
              operators of airboat tours or rides holding a valid
              occupational license for such purposes as of March 5, 1996,
              for purposes of gaining ingress and egress to their base of
              operations or to residences constructed on Lake Hamilton
              after the effective date of this ordinance.

              Since the setback provision does not apply to certain homes on Lake

Hamilton, the ordinance appears to allow the operators of commercial airboats to

operate as close to the homes as they desire. Further, the airboats are allowed to

operate from 7 a.m. until 10 p.m. from Sunday to Thursday and from 6 a.m. until

midnight every Friday, Saturday, Memorial Day, Independence Day, and Labor Day. As

this court held in Erwin, 752 So. 2d at 1262, compliance with this county ordinance does

not mean that the activity cannot constitute a judicially abatable nuisance. "A lawful

business may be conducted in such an unreasonable manner, that as a result thereof, a

neighbor is deprived of the free use or enjoyment of his adjoining property." Barfield

Instrument Corp., 102 So. 2d at 741.

                                    III. PREEMPTION

              In its order dismissing the Association's complaint, the trial court refers to

the preemption doctrine in the following ruling: "State law preempts the area of what can

be a nuisance by way of airboat noise pollution . . . ." Because the six-page order only

mentions preemption in this one sentence and does not discuss how the preemption

doctrine would apply to this case, we cannot discern whether the trial court intended to

simply rule, as discussed above, that the activity of Captain Fred's cannot be a nuisance

because it is authorized by Florida's statutory law and certain administrative rules or

whether the trial court applied the doctrine of preemption. Regardless, we conclude that



                                            -5-
the order's reference to preemption need not muddy the legal water in this case,

because the preemption doctrine does not bar the Association's claim for nuisance.

               Because the trial court's order is silent as to which form of preemption

operates to preclude the instant action, we will review both forms of preemption

recognized in this state. "Florida law recognizes two types of preemption: express and

implied. Express preemption requires a specific legislative statement; it cannot be

implied or inferred." Sarasota All. For Fair Elections, Inc. v. Browning, 28 So. 3d 880,

886 (Fla. 2010). To meet the demands of express preemption, the statute is required to

contain "specific language of preemption directed to the particular subject at issue."

Santa Rosa Cty. v. Gulf Power Co., 635 So. 2d 96, 101 (Fla. 1st DCA 1994). "Express

preemption of a field by the legislature must be accomplished by clear language stating

that intent." Phantom of Clearwater, Inc. v. Pinellas Cty., 894 So. 2d 1011, 1018 (Fla.

2d DCA 2005) (citing Santa Rosa Cty., 635 So. 2d at 101).

               The order of dismissal referenced the following statutes: sections

327.60(2), 327.65, and 327.04, Florida Statutes. Also referenced was Florida

Administrative Code Rule 68D-23.101. We conclude that the statutes and ordinance

cited in the trial court's order fail to contain the necessary specific language that

expressly preempts a private cause of action for nuisance. In Phantom, 894 So. 2d at

1018, this court identified specific legislative language that has been held to establish

express preemption: "It is the legislative intent to give exclusive jurisdiction in all matters

set forth in this chapter . . . ." See also Santa Rosa Cty., 635 So. 2d at 101. Neither

this express language nor similar language appears in the statutes relied upon by the

trial court.




                                             -6-
               We next address the second type of preemption: implied preemption.

Preemption is implied "when 'the legislative scheme is so pervasive as to evidence an

intent to preempt the particular area, and where strong public policy reasons exist for

finding such an area to be preempted by the Legislature.' " Browning, 28 So. 3d at 886

(quoting Phantom, 894 So. 2d at 1019). As stated in Browning, "[i]mplied preemption is

found where the state legislative scheme of regulation is pervasive and the local

legislation would present the danger of conflict with that pervasive regulatory scheme."

Id. (citing Tribune Co. v. Cannella, 458 So. 2d 1075, 1077 (Fla. 1984)).

               Implied preemption is judicially imposed and reflects a decision by the

judiciary to fill a void left by the failure of the legislature to provide an explicit legislative

directive of preemption. Phantom, 894 So. 2d at 1019. "When courts create

preemption by implication, the preempted field is usually a narrowly defined field,

'limited to the specific area where the Legislature has expressed [its] will to be the sole

regulator.' " Id. (quoting Tallahassee Mem'l Reg'l Med. Ctr., Inc. v. Tallahassee Med.

Ctr., Inc., 681 So. 2d 826, 831 (Fla. 1st DCA 1996)).

               From the statutes cited by the trial court, an intent to occupy the field of

nuisance law cannot be discerned. What is identifiable is a legislative intent to prohibit

local governments from discriminating against airboats. The legislative scheme does

not reflect a strong public policy rationale to deprive a citizen of their right to avail

themselves of a remedy for nuisance.2


               2
              We treat the effect of these statutes on the nuisance claims using the
term "preemption" because that is how the trial court treated them. It is not clear to us,
however, that classic preemption principles provide the appropriate analytical
framework. Generally understood, preemption deals with the constitutional allocation of
power between state and local governments and is implicated when a state statute
regulates an activity that is also regulated by a county or municipal government. See
generally Sarasota Alliance For Fair Elections, Inc. v. Browning, 28 So. 3d 880, 886-87
                                               -7-
                                   IV. CONCLUSION

             Accordingly, we reverse the order dismissing this case because the trial

court incorrectly found that compliance with the county ordinance absolved Captain

Fred's from any private claim of nuisance.

             Reversed and remanded for further proceedings.



WALLACE and SALARIO, JJ., Concur.




(Fla. 2010) (outlining the nature of express and implied preemption). State law
preempts county or municipal regulation when a state statute expressly says that it does
or by implication occupies the entire field. Id. at 886. This case, however, involves the
effect of certain state statutes on the availability of the recognized common law claim of
nuisance, not the exercise of regulatory power by a county or municipal government,
and this is not a case where a local regulation is an ingredient of the common law claim.
                                             -8-
