Is Stealing Plants a Crime in Florida?

A Specific Rule for Nurseries

Section 581.122 of the Florida Statutes makes it unlawful for any person, with intent to injure or defraud, to take, carry away or damage any plant, plant product or nursery stock in a nursery without the owner's consent. The same section bars entering a nursery while it is closed for business without the owner's written or oral consent.

Chapter 581 defines nursery stock broadly. It includes plants, trees, shrubs, vines, bulbs, cuttings, grafts, scions and buds grown or kept for, or capable of, propagation or distribution. A violation of the chapter is a first degree misdemeanor, which carries up to one year in jail and a fine of up to $1,000.

General Theft Law Also Applies

Florida defines property to include "things growing on, affixed to, and found in land." Under section 812.014, a person commits theft by knowingly obtaining or using the property of another with intent to deprive the owner of a right to the property or a benefit from it.

Value usually sets the charge. Taking plants worth less than $100 is generally petit theft of the second degree, a misdemeanor punishable by up to 60 days in jail and a fine of up to $500. A value of $100 to under $750 is a first degree misdemeanor. A value of $750 to under $20,000 is grand theft of the third degree, a felony punishable by up to five years in prison and a fine of up to $5,000.

Stricter rules apply to plants taken from a home or its unenclosed curtilage. A value under $40 is generally a first degree misdemeanor there, and a value of $40 or more is at least a third degree felony. Taking 2,000 or more pieces of citrus fruit is also a third degree felony.

Trespass and Damage to Plants

Florida's trespass statute covers land where notice against entering has been given by actual communication, posting, fencing or cultivation. It also covers the unenclosed curtilage of a home when a person enters to commit another offense there, such as theft. Land cleared of natural vegetation and planted with a crop, orchard, grove, pasture or trees counts as cultivated land.

Trespass of this kind is generally a first degree misdemeanor. Trespass on posted commercial horticulture property is a third degree felony.

Plants that are damaged rather than taken may fall under the criminal mischief statute, which covers willful and malicious damage to the property of another. Damage of $200 or less is a second degree misdemeanor. Damage of $1,000 or more is a third degree felony.

Brevard County Parks and City Tree Rules

Brevard County's code bars removing, damaging, cutting or transplanting any tree, shrubbery, lawn or plant, or picking its flowers or fruit, in any county park, recreational facility or department managed lands. A violation is punishable by a fine of up to $500, up to 60 days in the county jail, or both.

Some city rules reach property owners themselves. In Melbourne, the land development code generally requires a permit before cutting down, removing or destroying a tree on any property in the city.

West Melbourne generally requires a tree removal permit before anyone removes, damages or severely tops a protected tree listed in the city's Manual of Acceptable Plantings.

Civil Recovery for Owners

Under section 772.11, a person who proves by clear and convincing evidence that he or she was injured by a theft may sue for three times the actual damages, with a minimum of $200, plus reasonable attorney's fees and court costs.

Before filing, the claimant must make a written demand for $200 or the treble damage amount. A person who complies within 30 days receives a written release. Punitive damages are not available under the section. A defendant may recover attorney's fees if the claim lacked substantial fact or legal support.

Easler Law PLLC handles civil litigation matters for clients in Melbourne and throughout Brevard County.