Background
Agritourism is a field that is growing in popularity as producers try to diversify and increase profits. By combining agriculture and tourism, agritourism offers new sources of revenue but also presents potential problems and legal complications to agritourism operators.
“Agritourism” Defined
Simply stated, agritourism could be thought of as the crossroads of tourism and agriculture. Stated more technically, agritourism can be defined as a form of commercial enterprise that links agricultural production and/or processing with tourism to attract visitors onto a farm, ranch, or other agricultural business for the purposes of entertaining and/or educating the visitors while generating income for the farm, ranch, or business owner.
Regardless of the exact definition or terminology, any definition of agritourism should include the following four factors:
- combines the essential elements of the tourism and agriculture industries;
- attracts members of the public to visit agricultural operations;
- is designed to increase farm income; and
- provides recreation, entertainment, and/or educational experiences to visitors.
The term “agritourism” is often used interchangeably with “agri-tourism,” “agrotourism,” “farm tourism,” “agricultural tourism,” or “agritainment.”
Examples of Agritourism
Agritourism operations exist throughout the United States and the world. They range from small operations that function on a seasonal basis and offer limited consumer services to large operations that operate throughout the year and provide numerous consumer services.Common examples of agritourism include:
- pumpkin picking patches;
- corn mazes;
- U-Pick operations;
- petting and feeding zoos;
- hay rides;
- cut-your-own Christmas tree farms;
- dude ranches;
- demonstration farms;
- agricultural museums;
- living history farms;
- on-farm farmers’ markets;
- winery tours and wine tasting;
- rural bed & breakfasts; and
- garden tours.
Examples of actual agritourism operations can be easily located through routine internet searches and through web sites, such asagritourismworld.com,that provide comprehensive databases of agritourism operations throughout the country.
Importance of Agritourism
Agritourism presents a unique opportunity to combine aspects of the tourism and agriculture industries to provide a number of financial, educational, and social benefits to tourists, producers, and communities.Agritourism gives producers an opportunity to generate additional income and an avenue for direct marketing to consumers. It enhances the tourism industry by increasing the volume of visitors to an area and the length of their stay. Agritourism also provides communities with the potential to increase their local tax bases and new employment opportunities. Additionally, agritourism provides educational opportunities to the public, helps to preserve agricultural lands, and allows states to develop business enterprises. While agritourism may create new potential revenue streams, it also presents new legal issues for farmers and landowners.
Legal Issues
Landowner/Operator Liability
Liability is a significant concern for farmers, ranchers, and others who operate agritourism enterprises. Simply stated, a landowner who opens his or her land to the public faces the risk that he or she could be considered liable if an entrant is injured while on the property.
The duty of care owed to someone who is on a landowner’s property has traditionally depended on whether the entrant is classified as a trespasser, a licensee, or an invitee. The classification of invitee is the most relevant to agritourism operators, though either of the other two categories could apply under certain circ*mstances.
Trespassers are persons who are on the land without the landowner’s permission. As a general rule, landowners owe trespassers no duty of care except to avoid intentionally injuring them. However, children who are trespassers may be owed a higher duty of care depending on the situation and jurisdiction.
A licensee is someone who is on the property with permission but does not provide any economic benefit to the landowner, such as a hunter or fisherman who does not compensate the landowner for access to the land. Generally, licensees must be told of hidden dangers and the landowner owes a duty of care to not act in a way that would harm the licensee.
Invitees are persons who enter upon the premises with the permission of the landowner or operator. Invitees provide an economic benefit to the landowner or operator and are owed the highest duty of care. The landowner must warn invitees of potential dangers and must keep the premises relatively safe for them. The term “invitees” not only includes paying customers at the agritourism operation but may also include employees that are staffing the event. This heightened standard for invitees necessitates the creation of a risk management plan to address issues before they become a problem.
For more information regarding landowner liability issues, visit theLandowner Liability Reading Room.
Agritourism Statutes
Many states have passed agritourism statutes that may create an affirmative defense to lawsuits brought by injured customers. Generally, these statutes protect against “inherent risks” associated with running an agritourism operation, such as the condition of the land and building. Many have an exception disallowing their use if the operator is negligent or grossly negligent in the running of the agritourism business. It is important to read the state statute carefullybecause many require certain steps before an agritourism operator may use the statute in defense. Many states require that agritourism operators post warning signs with specific language that is included in the statute. Failure to comply with the agritourism statute may limit its usefulness as a defense.
For more information regarding these laws, visit theAgritourism State Laws Compilation Map.
Animal Welfare Act
Animals used strictly for agricultural purposes are exempt from regulation under the Animal Welfare Act (AWA). However, the AWA is applicable when animals are exhibited, even if the animals are farm animals. According to the Animal and Plant Health Inspection Service (APHIS), the USDA agency that administers the AWA, the exhibition of animals includes petting zoos, roadside zoos, trained animal shows, and educational displays. An agritourism operator who uses animals for exhibition purposes should be aware of the potential application of the AWA. For more information regarding animal welfare, please visit theAnimal Welfare Reading Room.
Other Considerations
Agritourism enterprises may involve a variety of other legal issues, depending largely on the activities involved and the laws of the state where the business is located. Producers who provide food stands or restaurants must consider local food safety and public health laws that may apply and laws governing liquor licenses if alcohol is served on the premises. For more information on food safety, please visit theFood Safety Reading Room. In addition, agritourism operators should be aware that many of their activities may not be covered by standard farm insurance policies and that additional liability coverage may be needed to cover injuries arising from agritourism activities.
Agritourism operations may also face issues with zoning restrictions, building codes, compliance with the Americans with Disabilities Act, taxation, and business permits. Zoning restrictions are an issue that many new agritourism operators do not think about, but disputes with neighbors caused by increased traffic, noise, etc. have led to costly litigation. TheAgritourism Reading Room contains resources addressing these topics and many others; however, it is important to note that agritourism operations face many unique challenges because of location and the type of services that they offer.
