Maria Bampasidou, Hatch, Dora Ann | 10/19/2017 3:55:48 PM
Throughout the United States, farmers are recognizing that agritourism has the potential to sustain the farming industry and grow rural economies through tourism. Statistics provided by the Louisiana Travel Promotion Association in 2007 suggest that Louisiana has potential to grow an agritourism industry. This report cited that one in four travelers to Louisiana came to enjoy the great outdoors.
Those numbers aren’t surprising to owners of bed and breakfasts located on working farms and ranches who have hosted guests for years. To foster the statewide growth of this industry known as agritourism, the 2008 Louisiana Legislature passed a bill limiting liability for agritourism professionals known as La R.S. 9:2795.5.
The legislation provides that the Louisiana Department of Agriculture and Forestry will develop a set of rules and regulations and that the LSU AgCenter will define a “plan of operation” for an agritourism venture. This publication contains the definition for the plan of operation and suggests best management practices for agritourism professionals to follow to minimize their risks.
A copy of the plan of operation is included in this brochure. The plan can also be found online at www.lsuagcenter.com/agritourism.
With much of Louisiana’s agriculture in a challenging economic situation, specialty crops offer growers alternatives to consider. Specialty crops are crops new to a region where they have not been grown commercially before. They include fruits and vegetables, tree nuts, dried fruits and horticulture and nursery crops. A recent LSU AgCenter study highlights the importance of the specialty crops market, reporting that specialty crops have an economic impact on the state of about $400 million (LSU AgCenter 2016). Many specialty crops are used as staples in Louisiana cuisine and help make our food and culture unique. We encourage you to visit our Louisiana agritourism operations, where you can enjoy our specialty crops, including:
Agritourism is a business operation on a working farm, ranch or agricultural enterprise that offers educational and fun experiences for visitors while generating supplemental income for the owner.
Visitors participate in friendly “discovery” and learning activities in natural or agricultural settings. Because it blends entertainment and education, agritourism is also known as “agrientertainment” and “agritainment.” (See LSU AgCenter Publication AC-5)
A plan of operation is a planning document that assists agritourism professionals in identifying and addressing possible inherent risks on their operations through recommended best management practices. Components of the plan include a listing of activities, their risks, suggestions for minimizing those risks and a plan for the location of warning signs.
Under La R.S. 9:2795.5, agritourism activities are defined as activities related to agritourism as defined in rules and regulations adopted by the commissioner of Louisiana Agriculture and Forestry (LDAF). A copy of those rules and regulations can be obtained by logging onto the LDAF Web site at www.ldaf.state.la.us
Risks shall be defined as the “inherent risks of agritourism activity" as described in La R.S. 9:2795.5. “Inherent risks” mean those conditions, dangers or hazards that are an integral part of an agritourism activity, including surface and subsurface conditions of land and water; natural conditions of vegetation; the behavior of wild or domestic animals; those arising from the form or use of structures or equipment ordinarily used on a working farm, ranch or other commercial agricultural, aquacultural, horticultural or forestry operation; and the mistakes or negligent acts of a participant that may contribute to injury to the participant or others, including failing to follow instructions given by the agritourism professional or failing to exercise reasonable caution while engaging in the agritourism activity, according to La R.S. 9:2795.5.
Best management practices are suggested practices that an agritourism professional can use to minimize risks in an agritourism enterprise. These best management practices can be used in the plan of operation under “suggestions to minimize risks.”
When reviewing or inspecting the various areas and activities around an agricultural enterprise, identify potential hazards and try to consider how others without your agricultural knowledge and experience would view each situation. Consider the perspectives of customers with little or no knowledge of potential agricultural hazards, especially your most at-risk customers, such as children or the elderly. Also, consider the perspectives of your employees who may also have little or no knowledge of potential agricultural hazards and may need training in identifying and handling hazards.
You may consider asking a friend or representative from an appropriate agency to assist in this process. Friends who have operated similar enterprises can point out potential hazards or management difficulties. Your insurance agent may be able to identify items with a history of contributing to claims. Activities subject to regulation should be reviewed and may require inspection prior to opening as well as at other times. It is better to discover and correct problems before injuries and, perhaps, legal problems occur.
You have heard the old adage, “You never get a second chance to make a first impression.” The entrance to your enterprise is often one of the first impressions customers will have of your business, and the entrance should, of course, be free of hazards. In particular, make sure traffic can safely enter and leave your enterprise.
The following suggestions may help to ensure safe access to your enterprise. Use the check boxes provided to indicate items relevant to your planned or existing operation. You may also want to mark actions you want to explore further.
The second impression customers get of your business might be the parking lot. Check local ordinances regarding parking requirements for businesses. Some local jurisdictions may have specific requirements based on the type of business and expected number of vehicles. Here are some general recommendations for parking areas:
The walkways between parking and other facilities may be the next opportunity to make a good impression and prevent safety hazards. Walkways should be easily identified, with clear signage directing customers to the areas they wish to visit.
Customers must have safe access to business facilities. While regulations permit some exceptions to the accessible design guidelines, you must provide reasonable accommodations for all customers. Building codes for both new construction and remodeling older facilities require accessible design. Structures that can accommodate individuals with disabilities are also easier for able-bodied people to use. Refer to the Americans With Disabilities Act manual online at http://www.ada.gov/
Consider the following access guidelines:
Proper lighting is essential both for preventing injuries and as a security measure. Lighting considerations include the following:
It is important for your customers to feel safe and secure at your operation. Customers may be unlikely to return if they feel unsafe or uneasy, for either their personal safety or the safety of their vehicle and belongings. Adopting the following procedures will help customers feel safe:
Animals are part of the farming experience, but safety should be a major consideration when deciding how animals are to be included in your agritourism operation. Animal control and biosecurity procedures may include the following:
Natural water features – ponds, lakes, streams, rivers or swimming pools may be part of the landscape in agricultural enterprises. Because water poses a danger, care should be given by:
West Nile Virus and other diseases can be spread to animals and humans by insects and other vectors (a vector is an organism that does not cause disease itself but which spreads infection by conveying pathogens from one host to another). Rabies can be spread by mammals, particularly skunks, raccoons, and bats. Flies, roaches, mice and other pests can also be vectors for diseases. Therefore, a pest control program must be in place. Consult regulations for the particular enterprise you will be operating to determine specific requirements. Pest control methods may include the following:
All food and drinks must be stored, prepared, served and sold in strict compliance with health department regulations and guidelines. All food service establishments should pass the health department inspection, even concession stands that may not require a permit. Contact your parish health department regarding permits and requirements. Contact the LSU AgCenter for information on proper food handling and your parish health department for information on food service employee classes.
One often-ignored aspect of food safety is customer sanitation practices, particularly hand washing. Provide hand-washing facilities and/or waterless hand sanitizers and post signs encouraging proper sanitation. When hosting school groups and similar tours, direct employees or chaperones to require hand washing before serving snacks or meals.
A fire can have a devastating impact on any business, but particularly if it occurs in crowded areas. Therefore, you should develop a fire prevention and control strategy for your agritourism enterprise.
Farm machinery is fascinating to children of all ages. Tractors and other machinery, however, are designed for one operator and no passengers, with few exceptions. Therefore, the operation of machinery should be kept to a minimum and incorporated into only very carefully planned activities that do not place staff and customers at risk. Some safety procedures for machinery operation include the following:
When transporting employees and customers, use vehicles designed for that purpose. When transporting people on public roads, use only licensed motor vehicles with manufacturer-provided seating for each passenger. Golf carts and other off-road utility vehicles are suitable choices for many off-road trips.
As suggested earlier, there may be times when it is desirable or necessary to transport personnel and customers for events such as hayrides. This should be done with great care. Properly used, tractors and wagons can be safe for off-road transportation. Proper use includes:
Providing recreational activities can increase customers’ enjoyment of their visits and allows them to spend more time or visit more often, perhaps increasing sales. As with other aspects of the enterprise, however, recreation is not without certain risks. Research the activities and learn the potential risks; then select appropriate activities and enforce safe behavior. Here are some examples:
Storage areas are necessary for agritourism ventures, but they also can pose a danger if not properly secured by a lock. Storage areas can be used to store unused equipment that poses a danger to children. Having a storage area that can be locked will eliminate the need for roping or fencing off areas. When selecting storage items:
Some states have attractive nuisance laws that require property owners to safeguard customers, visitors and even trespassers from attractive nuisances. Their laws and court judgments concerning attractive nuisances address their risks to children, but similar concerns may exist for adults unfamiliar with farms and individuals with developmental disorders.
Louisiana is different concerning attractive nuisance laws. “The traditional common law categories defining the duty of care to persons on the premises according to their status as invitee, licensee, trespasser or child trespasser were abandoned in the Shelton and Cates cases in 1976 and 1977. The attractive nuisance doctrine as to child trespassers was also abandoned. The resulting rule is that a landowner owes a duty of care according to the degree of danger and the foreseeability on the premises of those who might be harmed.” (Crawford, William E., James J. Bailey Professor Law, Louisiana State University, Louisiana Civil Law Treatise, Volume 12, Tort Law, St. Paul, MN, West Group 2000 pages 362-363.)
The duty of care for a landowner in Louisiana would require that the landowner take responsibility for the unseen; things that are not observable by an individual. For example, if a landowner allowed someone to swim in a pond that had old pier pilings hidden under the water’s surface, and the swimmer became injured, the landowner could be guilty of negligence because he did not warn the swimmer about the dangerous condition of the pond. In the same way, an agritourism business is protected from liability except for “An act or omission that constitutes willful or wanton disregard for the safety of the participant and that act or omission caused injury, damage, or death to the participant” (5) (LA R.S. 9:2795.5); for example, a donkey that frequently kicks people being allowed to run loose among agritourism guests.
This immunity statute gives further protection to agritourism businesses provided they follow the rules and regulations set forth by the Louisiana Department of Agriculture and Forestry in La R.S. 9:2795.5 and complete a plan of operation and post warning signs.
Perhaps no other business is as affected by weather as agricultural enterprises. Even the best plans can be wiped out by unfavorable growing conditions. Similarly, agritourism operations can be influenced by weather. Severe thunderstorms may be the most threatening situation. They pose multiple threats such as lightning, high winds and tornadoes, hail, heavy rains and flash flooding. They can also arrive quickly. Other elements such as heat, cold, sun and wind also can be hazardous.
Louisiana experiences almost every form of natural disaster. Some can be forecast several days in advance, such as tropical and ice storms. Your safety and emergency response plan should include procedures and preparations to protect customers and employees from weather or natural-disaster-related injury.
Because a quick response is critical in medical emergencies, someone trained in basic first aid and CPR should be on the premises whenever the business is open. In fact, the Occupational Safety and Health Administration (OSHA) standard for general industry, 29 CFR 1910.151, requires that employers provide personnel trained to administer first aid and that first aid supplies be made available unless there is a hospital, clinic or infirmary in “close proximity” for treating all injuries.
The purpose of this standard is to provide first aid until emergency medical services can respond. OSHA does not define “close proximity.” Past interpretations from OSHA, however, suggest that a response time of three to four minutes is needed in incidents involving suffocation, severe bleeding and other life-threatening or permanently disabling injuries.
Other injuries or conditions may permit longer response times, but prompt treatment is still needed. Medical personnel often refer to the first hour immediately after a serious injury, when caring for the victim is critical to survival, as the golden hour. For many conditions, the prospects of survival and full recovery decrease drastically if medical care is delayed beyond the first hour.
According to La R.S. 9:2795.5, “Every agritourism professional shall post and maintain signs that contain the warning notice:
Under Louisiana law, R.S. 9:2795.5, there is no liability for an injury to or death of a participant in an agritourism activity conducted at this agritourism location if such injury or death results from the inherent risks of the agritourism activity.
Inherent risks of agritourism activities include, among others, risks of injury inherent to land, equipment, and animals, as well as the potential for you to act in a negligent manner that may contribute to your injury or death. You are assuming the risk of participating in this agritourism activity.
It shall be placed in a visible location at the entrance to the agritourism location and at the site of the agritourism activity. The warning notice shall consist of a sign in black letters, with each letter to be a minimum of 1 inch in height. Every written contract entered into by an agritourism professional for the providing of professional services, instruction or the rental of equipment to a participant, whether or not the contract involves agritourism activities on or off the location or at the site of the agritourism activity, shall contain in clearly readable print the warning notice above.”
It is suggested that agritourism professionals purchase liability insurance. Insurance provides coverage to protect your investment and the safety of others. La R.S. 9:2795.5 does not exist to replace insurance but provides a limitation of liability for certain agritourism activities.
To learn more about your needs:
Failure to comply fully with the requirements of La R.S. 9:2795.5 shall prevent an agritourism professional from invoking the limitation of liability provided by the law. A plan of operation must be approved by the LSU AgCenter to show compliance with LA R.S. 9:2795.5.
Although the primary goal of a business is usually to earn a profit, failing to maintain a safe environment for your family, employees and customers can contribute to injuries, illnesses and property damage. This can result in significant financial losses from direct expenses, fines, legal fees and lost income due to disruptions in the business and negative publicity. In other words, safety matters.
For assistance from the LSU AgCenter contact, Bruce Garner, by calling (318) 428-3571 or e-mailing firstname.lastname@example.org
This brochure is intended to provide useful information, but it does not constitute legal counsel. Information provided is understood to be correct and current with regulations in force and information available at the time of publication. Regulations, however, are subject to interpretation and are often amended, repealed or added. All agritourism ventures are unique, and the authors recognize that no one document can address all the needs of any agritourism professional.