Just as the Halloween pumpkins are getting used to their wicked perches on our doorsteps, the fall and winter holidays will soon take their place. Perhaps not so expectedly, however, agritourism regulations may apply to your business operations. From wedding vendors to wineries, pumpkin patches and Christmas tree farms, to petting zoos and bed and breakfasts, knowing whether your activity is defined as “agritourism activity” is important. Being classified this way comes a number of requirements including posting of a warning limiting liability resulting from the inherent risks associated with agritourism activity.
Virginia Code § 3.1-796.137 defines agritourism as any activity carried out on a farm or ranch that allows members of the general public, for recreational, entertainment, or educational purposes, to view or enjoy rural activities, including farming, wineries, ranching, historical, cultural, harvest-your-own activities, or natural activities and attractions. An activity is an agritourism activity whether or not the participant paid to participate in the activity.
Important to note especially are the ever popular “harvest-your-own” activities such as picking your own pumpkins, apples or strawberries and even the annual trip to the Christmas tree farm many of us make to select our perfect tree (or that not-so-perfect Charlie Brown tree) for the holiday season. It’s especially key to note that the regulations apply whether or not the host site requires payment to come on to the property or engage in the activity as a “participant” is simply anyone (other than an agritourism professional) who “engages in an agritourism activity” above. The reason for the regulations is due to the presumed “inherent risks of agritourism activity” which is defined as the following: those dangers or conditions that are an integral part of an agritourism activity including certain hazards, including surface and subsurface conditions; natural conditions of land, vegetation, and waters; the behavior of wild or domestic animals; and ordinary dangers of structures or equipment ordinarily used in farming and ranching operations. Inherent risks of agritourism activity also include the potential of a participant to act in a negligent manner 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.
The good news is that if engaged in agritourism activity, the professional’s liability is limited in many respects regarding the inherent risks associated with the activities outlined above, so long as the professional posts the required warning exactly as mandated in Virginia Code § 3.1-796.139. Virginia Code § 3.1-796.139 (B) states that the agritourism professional is not insulated from injuries caused by the professional negligence or willful disregard causing injuries or damages, actual knowledge of dangerous conditions, or intentional injury of a participant. However, aside from these few limitations, the statute provides that “no participant or participant’s representative is authorized to maintain an action against or recover from an agritourism professional for injury, loss, damage, or death of the participant resulting exclusively from any of the inherent risks of agritourism activities.” The only other caveat is that in response to a resulting claim, the agritourism professional must claim the affirmative defense of assumption of the risk of the agritourism activity. The goal is to protect and encourage agritourism professionals to continue to offer the activities and experiences on their properties without the overwhelming fear of liability.
The warning that is required under Virginia Code § 3.1-796.139 must state as follows:
WARNING: Under Virginia law, 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.
This warning must be “placed in a clearly 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 one inch in height.” Additionally, this same warning must appear in every written contract the agritourism professional enters “for the providing of professional services, instruction, or the rental of equipment to a participant” and this is whether or not those services involves the agritourism activities on or off the premises.
Virginia Senate Bill 51 signed into law by Governor Terry McAuliffe and effective as of July 1, 2014 limits the power of local governments by no longer allowing localities to prohibit agritourism activities “unless they have a substantial impact on the public’s health, safety and welfare.” Localities are also prohibited from requiring a permit for agritourism activities except in limited proscribed circumstances.
The list of potential Agritourism Ideas and Resources is far more inclusive than you may imagine. Keep yourself informed and learn of the regulations that may apply to your activities. We can help with any of your contracting or signage requirement needs related to agritourism activity regulation to ensure that you operate smoothly and continue to be able to offer the cultural and community services enjoyed by so many.
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