Agritourism in Pennsylvania - Legal and Regulatory Issues
There are several important legal considerations when starting an agritourism operation in Pennsylvania, such as zoning, liability insurance, accommodating visitors with disabilities and, if you have animals, animal welfare regulations. In this article we provide an overview of the typical issues an agricultural operator would encounter when starting an agritourism operation, or if you would like to expand your operation and add more activities.
Zoning
Zoning laws regulate land uses. These laws can affect every business and many activities. Under Article VI Section 617.2 of the Pennsylvania Municipalities Planning Code, violating a zoning ordinance could result in fines up to $500, plus fees.
Agritourism operators should be aware that zoning ordinances may include parking, hours of operation, traffic, noise, lighting, structures, and more.
In order to find the applicable zoning laws, operators can request a copy of their local ordinance from the local zoning office or planning board. Due to the unique nature of agritourism, zoning laws may not specifically address certain aspects of all activities. Before an operator can begin planning, it may be beneficial to contact an attorney to assist in reviewing current laws and to assess requirements associated with the proposed operation.
In some situations, it may be clear that the planned agritourism activity is not permitted under the local zoning laws. The operator could consider a conditional use permit, variance, or non-conforming use. These permits grant an exception to the landowner to use the property in a way that does not conform with the zoning ordinance.
Liability & Insurance
What Should You Keep in Mind?
Agritourism operations have risks similar to any entertainment operation, but with the added dangers normal of farm or ranch activities. Agritourism participants with no farm familiarity could unknowingly act in a manner that could cause harm to themselves or others. The operator should make note of any equipment or animals that could be hazardous to children or the uninformed. In addition, the operator should make note of other potential risks including the terrain, paths and walkways, zoonotic diseases, weather, and parking. Common-sense actions may address some of these risks. For example, an operator should purchase a first aid kit, put up 'do not touch' signs, buy rock salt for ice or hay for mud, and keep dangerous animals away from guests.
Agritourism participants are owed the highest duty of care and, as such, landowners must inspect their property, must warn of any dangerous conditions, and must remedy these conditions.
Some U.S. states have passed agritourism liability protection statutes. Under liability protection statutes, a landowner must not engage in willful, wanton, or reckless conduct that could cause harm, but otherwise has no duty to the participant.
Generally, so long as the landowner complies with the statute, they will be protected from lawsuits. In order to meet the statute requirements for this liability protection, most states require the agritourism operator to post warning signs in easily visible locations around their operation.
At the time of publication, Pennsylvania does not have an agritourism statute providing liability protection.
Without state liability protection legislation, an agritourism operator should definitely consider liability insurance and entity formation. An operator should first check to see if liability insurance is required by their municipality. The operator should also consider the cost: comparing how much protection is needed and how much the operator can afford to spend. Not all insurance companies will cover the varied activities offered in agritourism operations. The operator must make sure that the insurance company understands all aspects of the proposed operation.
Even with insurance, an operator should consider entity formation for liability protection. Depending on the type of entity created, the operator might receive transferability or tax benefits. For example, an operator could create a corporation, or Limited Liability Company (LLC). When creating this type of entity, the business owner, or agritourism operator, may decide which assets to move into the corporation or LLC. Entity creation allows the operator to choose to keep personal assets out of the agritourism operation. In this case, if an injured participant brings a lawsuit against the agritourism operation, the participant would only be able to recover from the assets within the business entity. If the operator kept personal assets separate from the business and complied with entity requirements, their personal assets would be protected.
Accommodating visitors with disabilities
If an operator holds public events that are accessible to everyone, they should ensure that visitors with disabilities have access to these events as well. Which type of accommodations are needed will depend on the event and the types of accommodations you are planning (for example accessible walkways, wide paths for wheelchairs, spacious parking spaces designed for visitors with disabilities). For more information, please see the American with Disabilities Act (ADA).
Animal Welfare Act
Petting zoos are a great way to educate the public about raising farm animals. Therefore, it is important to set an example of appropriate animal husbandry. The animal's health and safety, besides visitor's safety, is of paramount importance. The minimum an operator has to adhere to is the animal welfare act. In addition, Pennsylvania passed a comprehensive animal protection law (Act 10) in 2017.
Every operator should get familiar with the licensing and registration under the animal welfare act. For example, if you keep eight or fewer domesticated farm type animals for exhibition then you are likely to be exempt from licensing.
Keeping animals and having visitors interact with them adds new risks to your operations. Inform your insurance agent that you are planning on adding a petting zoo to your attractions to obtain an updated quote, ensuring that your liability insurance coverage is adequate.
Close encounters of animals with humans introduces the risk of zoonotic diseases. Salmonella, Cryptosporidia, Listeria, and E. coli O157:H7 or Shiga toxin-producing E. coli (also known as pathogenic E. coli) are some of the important pathogens. For more information, please see Penn State Extension's publication on Reducing E. coli Infections in People.
Offering food and concessions
Operators that will be providing food to visitors should contact the Pennsylvania Department of Agriculture, Bureau of Food Safety to learn about what options and requirements that they may be subjective to under the law. The use of "residential style kitchen" to prepare food and serve to the public currently falls under the Limited Food Establishment regulations (3 Pa.C.S.A Sub Section 5721-5737). The types of food produced on the property, and either sold or provided, are 'limited' to foods that are not required to have temperature control for safety. Foods that would require heat or cold to maintain safety are included in the list of prohibited practices. Examples of food products that could be made include; Baked goods that do not require temperature control for safety; Beverages may include root beer, lemonade, lemon iced tea and other acid drinks that have a pH below 4.6; Juices must have a pH below 4.6 and can only be sold directly to the consumer; Jam & Jellies as long as proper procedures and formulas are followed; and Candy Making.
Under the Limited Food Establishment regulation, a PDA inspector will discuss what types of foods can be produced in the home and offered. He/She will inspect your kitchen to discuss any concerns identified. Additionally, a water test will be required prior to being approved. Upon completion of the application and approval, you may begin to make those items discussed with the PDA sanitarian.
Should you decide to serve meals/entrees, offer temperature control for safety (TCS) bakery products, or cold/hot foods, then you will need to discuss the regulations for commercial retail establishments with the food sanitarian. Your designated kitchen will need to meet the PA Food Code for commercial applications. Home based kitchens that are approved under the commercial retail establishment license will be inspected annually and must follow the practices outlined in the PA Food Code.
Building Codes
Pennsylvania's statewide building code is referred to as Uniform Construction Code (UCC) and is assigned its own code enforcement staff, or utilizes a third-party agency contracted for code enforcement. The UCC adopted the International Building Code 2015 as its official code.
If the municipality has no code enforcement assigned, Pennsylvania's Department of Labor and Industry is responsible for code enforcement. Over 90% of the 2,562 municipalities in Pennsylvania have adopted the UCC. In those cases where the municipality has opted out of the UCC, the Pennsylvania Department of Labor and Industry is the building authority. Typically, the township or the city are responsible for code enforcement and permit applications. The township website will have your permit application and your building inspector contact information. It is best to start to work with the building inspector from the start of your project, this will save you from making costly mistakes. The inspector will often offer valuable advice as you begin your new endeavor.
Type of operations: Changing use of an existing building (e.g. residential to food service):
In the case of changing the use of an existing building, a permit application must be submitted and awarded, an inspection must take place, and a new Certificate of Occupancy must be awarded for the intended facility use. Changes being made to existing structure should be listed on the permit application, along with facility aims. For commercial use, compliance American Disabilities Act is typically required.
Before applying for the permit for the change in use, consult the county comprehensive plan's zoning ordinance to make sure this is an acceptable use of the property. If it is not, you may apply for a zoning variance in order to allow you to fulfill your intentions.
You should be aware of Pennsylvania's fire regulations to understand your occupancy code for your permit application, and the associated requirements as they can have a significant impact on the cost of your project.
New construction:
For new construction the requirements above also apply, but you will also need to consider utility easements, soil conditions, sensitive environs, architectural review requirements, and utility availability. Typically, an elevation drawing of the proposed facility is required with the permit application.
Agriculture operations have a permit exemption in the state of Pennsylvania for buildings that are used for storage and certain operations (e.g. maple sap processing). The permit exemption form and specific regulations can be found on the Central Keystone Council of Government website. For structures that will not stand for more than 30 days, no permit is required.
Legal disclaimer
Penn State Extension does not provide legal advice, nor is its work intended to be a substitute for such advice and counsel. As such, the materials and information provided here do not constitute legal advice and are for informational purposes only. While efforts are made to maintain and update these resources, no warranty or other guarantee is made regarding the timeliness or accuracy of any materials or information provided. If you have any additional questions regarding zoning and liability issues, please contact the Center for Agricultural and Shale Law at Penn State: AgLawCenter@psu.edu.
This material is based upon work supported by USDA/NIFA under Award Number 2018-70027-28588.