Senate Bill 0092c1

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    Florida Senate - 1998                             CS for SB 92

    By the Committee on Judiciary and Senators Grant and Casas





    308-873-98

  1                      A bill to be entitled

  2         An act relating to eminent domain; amending s.

  3         73.0511, F.S.; providing for a written offer of

  4         compensation to fee owners as part of the

  5         prelitigation notice; providing for an exchange

  6         of appraisals; requiring the governmental

  7         condemning authority to notify onsite business

  8         operators; providing for access to confidential

  9         business records; amending s. 73.071, F.S.;

10         providing criteria for compensation by jury;

11         repealing s. 337.27(2), F.S., relating to the

12         exercise of the power of eminent domain by the

13         Department of Transportation; amending s.

14         73.092, F.S.; revising attorney's fee

15         guidelines for eminent domain proceedings;

16         providing an effective date.

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18  Be It Enacted by the Legislature of the State of Florida:

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20         Section 1.  Section 73.0511, Florida Statutes, is

21  amended to read:

22         73.0511  Prelitigation notice.--

23         (1)  Prelitigation notice to fee owners.--Before Prior

24  to instituting litigation, the condemning authority shall

25  notify the fee owners appearing of record on the date the

26  offer is made of statutory rights under s. 73.091 and shall

27  make a written offer of full compensation naming the fee

28  owners to whom it is made.

29         (2)  Exchange of appraisals.--

30         (a)  After the offer is made, the fee owner may request

31  a copy of the most current appraisal and construction plans

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    Florida Senate - 1998                             CS for SB 92
    308-873-98




  1  pertaining to the property upon which the offer is based. The

  2  governmental condemning authority shall provide the appraisal

  3  and plans within 15 days of the request. Notwithstanding the

  4  foregoing, however, with respect to lands acquired under s.

  5  259.041, the condemning authority is not required to give the

  6  fee owners the current appraisal before execution of an option

  7  contract to purchase the property.

  8         (b)  Within 30 days after receipt of the governmental

  9  condemning authority's appraisal, the fee owners shall provide

10  to the governmental condemning authority a copy of the most

11  current appraisal of the property prepared during the prior 3

12  years which is within the control or possession of the owner.

13         (3)  Prelitigation notice to business owners.--Before

14  instituting litigation, the governmental condemning authority

15  shall make a good-faith effort to notify the onsite operators

16  of businesses located on property to be acquired for a

17  proposed road right-of-way project of all statutory rights

18  under s. 73.091. The governmental condemning authority, if

19  requested, shall within 30 days provide to the owner or onsite

20  operator of the business a copy of the construction plans, if

21  any, and right-of-way maps pertaining to the property to be

22  acquired.

23         (4)  Business records.--After a governmental condemning

24  authority tenders a prelitigation offer under subsection (1),

25  the governmental condemning authority may seek to obtain from

26  the owner or onsite operator of the business a copy of the

27  business records kept in the ordinary course of business, if

28  available. For the purposes of this section and s.

29  73.092(1)(a)2., the term "business records" means copies of

30  federal income tax returns, federal income tax withholding

31  statements, federal miscellaneous income tax statements,

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    Florida Senate - 1998                             CS for SB 92
    308-873-98




  1  balance sheets, profit and loss statements, and state

  2  corporate income tax returns attributable to the business

  3  operation on the property to be acquired for the 3 years

  4  preceding notification. If any of these records are

  5  consolidated with records of other business operations not on

  6  the property to be acquired, then it will be sufficient in the

  7  alternative that edited portions of the business records

  8  attributable to the business operation on the property to be

  9  acquired for the 3 years preceding notification be provided in

10  addition to a signed acknowledgment from the business owner.

11  This subsection is not mandatory and may not be construed as a

12  condition for claiming business damages but is intended solely

13  for the purpose of encouraging prelitigation settlements. All

14  business records must be kept confidential by the governmental

15  condemning authority and used only for the purposes of a

16  written offer or in the condemnation suit for the property to

17  be acquired.

18         (c)  After the owner or onsite operator of the business

19  furnishes the business records in response to a request, the

20  governmental condemning authority may make a written offer of

21  settlement for business damages. If an eminent domain action

22  is initiated under chapter 73 or chapter 74 for acquisition of

23  the property more than 90 days after the governmental

24  condemning authority has received the business records, it

25  shall include the amount of its good-faith estimate of

26  business damages in its declaration of taking and shall

27  deposit the amount of the business damage estimate into the

28  court registry. The good-faith estimate constitutes a written

29  offer of settlement.

30         Section 2.  Subsection (3) of section 73.071, Florida

31  Statutes, is amended to read:

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    Florida Senate - 1998                             CS for SB 92
    308-873-98




  1         73.071  Jury trial; compensation; severance damages.--

  2         (3)  The jury shall determine solely the amount of

  3  compensation to be paid, which compensation shall include:

  4         (a)  The value of the property sought to be

  5  appropriated.; When the use of the property sought to be

  6  acquired is an agricultural operation as defined in s.

  7  570.02(1), income from farming is attributable to real estate.

  8         (b)  Where less than the entire property is sought to

  9  be appropriated, any damages to the remainder caused by the

10  taking., including,

11         (c)  When the action is by the Department of

12  Transportation, county, municipality, board, district or other

13  public body for the condemnation of a right-of-way, and the

14  effect of the taking of the property involved or substantial

15  diminution of access may damage or destroy an established

16  business of more than 3 5 years' standing at that business

17  location, owned and operated at that location by the party

18  whose property is being taken or whose access is being

19  substantially diminished lands are being so taken, located

20  upon adjoining lands owned or held by such party, the probable

21  damages to such business which the denial of the use of the

22  property so taken or access substantially diminished may

23  reasonably cause; any person claiming the right to recover

24  such special damages shall set forth in his or her written

25  defenses the nature and extent of such damages.; and The total

26  compensation awarded for business damages may not exceed the

27  fair market value of the business and reasonable moving

28  expenses.

29         (d)  Evidence of the ability to mitigate severance and

30  business damages on site or by relocating all or part of the

31  business to an adjacent property or to another comparable

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    Florida Senate - 1998                             CS for SB 92
    308-873-98




  1  location in the same market trade area may be considered when

  2  the cost of mitigation is less than the total severance and

  3  business damages claimed. Any increased costs of operation and

  4  reasonable expenses of mitigation resulting from the onsite

  5  mitigation plan or from the relocation of the business to

  6  another comparable location in the same market trade area,

  7  together with moving costs, downtime losses, and unmitigated

  8  damages, may be included when determining severance damages,

  9  business damages, and the total cost to cure payable to the

10  claimant.

11         (e)(c)  Where the appropriation is of property upon

12  which a mobile home, other than a travel trailer as defined in

13  s. 320.01, is located, whether or not the owner of the mobile

14  home is an owner or lessee of the property involved, and the

15  effect of the taking of the property involved requires the

16  relocation of such mobile home, the reasonable removal or

17  relocation expenses incurred by such mobile home owner, not to

18  exceed the replacement value of such mobile home.  The

19  compensation paid to a mobile home owner under this paragraph

20  shall preclude an award to a mobile home park owner for such

21  expenses of removal or relocation.  Any mobile home owner

22  claiming the right to such removal or relocation expenses

23  shall set forth in his or her written defenses the nature and

24  extent of such expenses.  This paragraph shall not apply to

25  any governmental authority exercising its power of eminent

26  domain when reasonable removal or relocation expenses must be

27  paid to mobile home owners under other provisions of law or

28  agency rule applicable to such exercise of power.

29         Section 3.  Subsection (2) of section 337.27, Florida

30  Statutes, is repealed.

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    Florida Senate - 1998                             CS for SB 92
    308-873-98




  1         Section 4.  Paragraph (c) of subsection (1) of section

  2  73.092, Florida Statutes, is amended to read:

  3         73.092  Attorney's fees.--

  4         (1)  Except as otherwise provided in this section, the

  5  court, in eminent domain proceedings, shall award attorney's

  6  fees based solely on the benefits achieved for the client.

  7         (c)  Attorney's fees based on benefits achieved shall

  8  be awarded in accordance with the following schedule:

  9         1.  Thirty Thirty-three percent of any benefit up to

10  $250,000; plus

11         2.  Twenty Twenty-five percent of any portion of the

12  benefit between $250,000 and $1 million; plus

13         3.  Twelve Twenty percent of any portion of the benefit

14  exceeding $1 million.

15         Section 5.  This act shall take effect July 1, 1998.

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    Florida Senate - 1998                             CS for SB 92
    308-873-98




  1          STATEMENT OF SUBSTANTIAL CHANGES CONTAINED IN
                       COMMITTEE SUBSTITUTE FOR
  2                          Senate Bill 92

  3

  4  The committee substitute:

  5  1.   Revises the proposed language on written offers of
         compensation and adds proposals for requesting business
  6       records and making offers of settlement of business
         damages.
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    2.   Revises the proposals on business damages, including
  8       deleting proposals for: payment of such damages to a
         business operator who does not own the property sought to
  9       be acquired; payment of "any damages resulting from the
         project that necessitated or caused the property to be
10       appropriated"; and payment of business damages in takings
         for any purpose, not just for right-of-way condemnations.
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    3.   Deletes from the bill the sections on negotiations and
12       settlement, mediation, and acquisition negotiations by
         the Department of Transportation.
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    4.   Repeals s. 337.27(2), F.S., which currently allows the
14       Department of Transportation to take an entire parcel if
         the cost of doing so is equal to or less than the cost of
15       taking only that portion of the parcel which is needed
         for the project.
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    5.   Amends s. 73.092, F.S., to reduce attorney's fees by
17       reducing the percentages used to calculate these fees.

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