Senate Bill 0092c3

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    Florida Senate - 1998               CS for CS for CS for SB 92

    By the Committees on Transportation; Governmental Reform and
    Oversight; Judiciary; and Senators Grant, Casas, Bronson and
    Kirkpatrick



    306-2203-98

  1                      A bill to be entitled

  2         An act relating to public works; amending s.

  3         73.0511, F.S.; providing for dispute resolution

  4         before the initiation of an eminent domain

  5         proceeding; providing for prelitigation notice

  6         by the condemning authority to fee owners and

  7         business owners; providing requirements with

  8         respect to written offers; providing for

  9         requests for business information; providing

10         for exchange of appraisals and other documents;

11         providing for letters of initial concern;

12         providing for conferences between the parties;

13         providing for disclosure of business records;

14         providing for offers of business damages and

15         counteroffers; providing for negotiations,

16         mediation, and settlement; requiring the use of

17         certified mail for delivery of certain

18         documents; providing for notice in certain

19         inverse condemnation proceedings; allowing

20         modification of certain provisions by mutual

21         agreement; amending s. 73.071, F.S.; revising

22         provisions with respect to compensation that

23         may be awarded by determination of a jury;

24         revising circumstances under which compensation

25         may be paid for damage to a business; allowing

26         evidence of ability to mitigate damages;

27         amending s. 73.092, F.S.; revising attorney's

28         fees; amending s. 337.25, F.S., relating to the

29         acquisition, lease, and disposal of real and

30         personal property; conforming cross-references

31         to changes made by the act; providing a

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  1         statement of important state interest;

  2         repealing s. 337.27(2), s. 348.0008(2), s.

  3         348.759(2), s. 348.957(2), s. 337.271, F.S.,

  4         relating to the power of certain condemning

  5         authorities to acquire whole parcels of

  6         property; requiring that the Department of

  7         Transportation report to the Governor and the

  8         Legislature on the cost and effectiveness of

  9         certain provisions of the act; creating a

10         working group to study the feasibility of

11         establishing certain business assistance

12         programs; providing for membership of the

13         working group; requiring a report to the

14         Governor and the Legislature; amending ss.

15         215.20, 215.22, F.S.; exempting certain

16         proceeds of the county fuel tax and the Local

17         Option Fuel Tax Trust Fund from the service

18         charge paid into the General Revenue Fund;

19         providing a schedule for implementing the

20         exemption; amending s. 253.82, F.S.; providing

21         for all transportation easements acquired under

22         the Murphy Act to be conveyed to the Department

23         of Transportation or the governmental entity

24         currently having title to the adjacent roadway;

25         requiring the establishment of a procedure for

26         review of deeds containing transportation

27         reservations acquired under the Murphy Act;

28         setting requirements for the review process;

29         providing for compensation of certain property

30         owners when the reservation denies current

31         economic use of the property; providing for

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  1         mediation or arbitration; amending ss. 712.04,

  2         712.05, F.S.; providing for the release of

  3         certain easements held by governmental

  4         entities; providing for preservation of certain

  5         road easement reservations pursuant to a road

  6         project scheduled to begin within a specified

  7         period; amending s. 479.15, F.S.; providing for

  8         relocation of lawful nonconforming signs;

  9         amending s. 337.19, F.S.; authorizing suits to

10         be brought against the department for the

11         breach of an expressed provision or an implied

12         covenant; providing that liability may not be

13         based on an oral modification of the written

14         contract; providing effective dates.

15

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

17

18         Section 1.  Effective January 1, 1999, section 73.0511,

19  Florida Statutes, is amended to read:

20         73.0511  Dispute resolution Prelitigation notice.--

21         (1)  NOTICE TO FEE OWNERS AND OFFER OF FULL

22  COMPENSATION.--

23         (a)  Before an eminent domain action is initiated under

24  this chapter or chapter 74 Prior to instituting litigation,

25  the condemning authority shall notify the fee owners appearing

26  of record on the date the offer is made of their statutory

27  rights under s. 73.091 and shall make a written offer of full

28  compensation as to those elements provided in s. 73.071(3)(a)

29  and (b), naming the fee owners to whom the offer is made. The

30  notice and written offer must be sent to the fee owners' last

31  known address listed on the county ad valorem tax roll. Notice

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  1  to one fee owner constitutes notice to all fee owners on

  2  multiple-ownership property. This paragraph does not shift the

  3  burden of proof of the condemning authority or the fee owners

  4  at a valuation trial under this chapter or chapter 74, as

  5  otherwise provided by law. The governmental condemning

  6  authority is not required to give notice to a person who

  7  acquires title to the property subsequent to the notice

  8  required by this section.

  9         (b)  The condemning authority may include with the

10  notice and written offer a request for information from the

11  fee owners, which must be limited to identification of any

12  tenants or onsite operators of businesses existing as of the

13  date the offer is made. If such a request for information is

14  made by the condemning authority, the fee owners shall respond

15  in writing within 30 days and shall list the name, address,

16  and contact person of each tenant or onsite operator of a

17  business if such information is known to the fee owners.

18  Information provided under this subsection shall assist the

19  condemning authority in notification procedures required by

20  this chapter or chapter 74, but the providing of such

21  information does not waive any requirement that the condemning

22  authority comply with such notification procedures.

23         (2)  EXCHANGE OF APPRAISALS, RIGHT-OF-WAY MAPS, AND

24  CONSTRUCTION PLANS WITH FEE OWNERS; INITIAL-CONCERN LETTER;

25  INITIAL-CONCERN CONFERENCE.--

26         (a)  After the notice and written offer provided in

27  paragraph (1)(a) is made, the fee owner may request of a

28  governmental condemning authority a copy of the most current

29  appraisal, right-of-way maps, and construction plans

30  pertaining to the property upon which the written offer is

31  based. The governmental condemning authority shall provide the

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  1  appraisal, maps, and plans within 15 days after receipt of the

  2  fee owners' request and, at that time, may make a written

  3  request for an initial-concern letter from the fee owners,

  4  citing the specific language of paragraph (c). In the

  5  alternative, after the notice and written offer provided in

  6  paragraph (1)(a) is made, a governmental condemning authority

  7  may, of its own accord, provide the appraisal, maps, and plans

  8  to the fee owners and, at that time, make a written request

  9  for an initial-concern letter from the fee owners, citing the

10  specific language of paragraph (c). Notwithstanding this

11  paragraph, with respect to lands acquired under s. 259.041,

12  the condemning authority is not required to give the fee

13  owners the current appraisal before execution of an option

14  contract to purchase the property.

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

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

17  to the governmental condemning authority a copy of the most

18  current appraisal of the property, if any, prepared during the

19  prior 3 years, which is within the possession or control of

20  the owner.

21         (c)  Within 30 days after receipt of a copy of the

22  governmental condemning authority's most recent appraisal,

23  right-of-way maps, and construction plans, the fee owners

24  shall provide to the governmental condemning authority, if

25  requested, a letter that sets forth the fee owners' initial

26  concerns, if any, regarding the impacts known at that time, if

27  any, of the proposed condemnation on any portion of the fee

28  owners' remaining property based on a preliminary review of

29  the maps and plans. The letter must set forth such issues so

30  as to reasonably inform the condemning authority of the

31  concerns of the fee owners. The letter shall be without

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  1  prejudice to the fee owners in negotiations or in the event a

  2  lawsuit is filed. The letter may not be introduced into

  3  evidence by the condemning authority or the fee owners in any

  4  proceeding under this chapter or chapter 74, with the

  5  exception of proceedings under ss. 73.091 and 73.092.

  6         (d)  After the notice and written offer provided in

  7  paragraph (1)(a) is made and after the exchange of appraisals,

  8  right-of-way maps, and construction plans provided in

  9  paragraphs (a) and (b) has occurred, either the fee owners or

10  the governmental condemning authority may make a written

11  request of the other for a conference to discuss the initial

12  concerns of the fee owners. If such request is made by the

13  condemning authority, the condemning authority shall include

14  in the written request notification to the fee owners of their

15  statutory rights under s. 73.091. The fee owners and the

16  governmental condemning authority shall make representatives

17  available for such conference within 60 days following the

18  written request. Evidence of any written or oral statements

19  made at the conference, other than a written settlement

20  agreement as provided under paragraph (7)(d), may not be

21  introduced into evidence by the condemning authority or the

22  fee owners in any proceeding under this chapter or chapter 74,

23  with the exception of proceedings under ss. 73.091 and 73.092.

24         (e)  This subsection expires December 31, 2002.

25         (3)  NOTICE TO BUSINESS OWNERS.--Before an eminent

26  domain action is initiated under this chapter or chapter 74,

27  where the action is by the Department of Transportation or a

28  county, municipality, board, district, or other public body

29  for the condemnation of a right-of-way, the governmental

30  condemning authority shall notify the business owners located

31  on the property upon which the written offer provided in

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  1  paragraph (1)(a) is based of their statutory rights under s.

  2  73.091. Notice to one business owner of a multiple-ownership

  3  business constitutes notice to all business owners of the

  4  multiple-ownership business. This subsection does not shift

  5  the burden of proof of the condemning authority or business

  6  owners at a valuation trial under this chapter or chapter 74,

  7  as otherwise provided by law. The governmental condemning

  8  authority is not required to give notice to a business owner

  9  who acquires title to the property subsequent to the notice

10  required by this section.

11         (4)  EXCHANGE OF APPRAISALS, RIGHT-OF-WAY MAPS, AND

12  CONSTRUCTION PLANS WITH BUSINESS OWNERS; INITIAL-CONCERN

13  LETTER; INITIAL-CONCERN CONFERENCE.--

14         (a)  After the notice provided in subsection (3) is

15  made, the business owners may request of a governmental

16  condemning authority a copy of the most current appraisal,

17  right-of-way maps, and construction plans pertaining to the

18  property upon which the written offer provided in paragraph

19  (1)(a) is based. The governmental condemning authority shall

20  provide the appraisal, maps, and plans within 15 days after

21  receipt of the business owners' request and, at that time, may

22  make a written request for an initial-concern letter from the

23  business owners, citing the specific language of paragraph

24  (b). In the alternative, after the notice provided in

25  subsection (3) is made, a governmental condemning authority

26  may, of its own accord, provide the appraisal, maps, and plans

27  to the business owners and, at that time, make a written

28  request for an initial-concern letter from the business

29  owners, citing the specific language of paragraph (b).

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

31  condemning authority's right-of-way maps, construction plans,

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  1  and request for an initial-concern letter, the business owners

  2  shall provide to the governmental condemning authority, if

  3  requested, a letter that sets forth the business owners'

  4  initial concerns, if any, regarding the impacts known at that

  5  time, if any, of the proposed condemnation on the business,

  6  based on a preliminary review of the maps and plans. The

  7  letter must set forth such issues so as to reasonably inform

  8  the condemning authority of the concerns of the business

  9  owners. The letter is without prejudice to the business owners

10  in negotiations or in the event a lawsuit is filed. The letter

11  may not be introduced into evidence by the condemning

12  authority or the business owners in any proceeding under this

13  chapter or chapter 74, with the exception of proceedings under

14  ss. 73.091 and 73.092.

15         (c)  After the notice and written offer provided in

16  subsection (3) is made and after the exchange of appraisals,

17  right-of-way maps, and construction plans provided in

18  paragraph (a) has occurred, either the business owners or the

19  governmental condemning authority may make a written request

20  of the other for a conference to discuss the initial concerns

21  of the business owners. If such request is made by the

22  condemning authority, the condemning authority shall include

23  in the written request notification to the business owners of

24  their statutory rights under s. 73.091. The business owners

25  and the governmental condemning authority shall make

26  representatives available for such conference within 60 days

27  following the written request. Evidence of any written or oral

28  statements made at the conference, other than a written

29  settlement agreement as provided under paragraph (7)(d), may

30  not be introduced into evidence by the condemning authority or

31  the business owners in any proceeding under this chapter or

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  1  chapter 74, with the exception of proceedings under ss. 73.091

  2  and 73.092.

  3         (d)  This subsection expires December 31, 2002.

  4         (5)  DISCLOSURE OF BUSINESS RECORDS.--

  5         (a)  After a governmental condemning authority tenders

  6  a written offer under paragraph (1)(a) and notifies the

  7  business owners under subsection (3), the governmental

  8  condemning authority may obtain from the business owners a

  9  copy of the business records that are kept in the ordinary

10  course of business and that are in the possession or control

11  of the business owners, as set forth in this subsection.

12         (b)  As used in this section and s. 73.092(1)(a)2., the

13  term "business records" means copies of federal income tax

14  returns, federal income tax withholding statements, federal

15  miscellaneous income tax statements, state sales tax returns,

16  balance sheets, profit and loss statements, and state

17  corporate income tax returns attributable to the business

18  operation on the property to be acquired for the 4 years

19  preceding notification. If any of these records are

20  consolidated with records of other business operations not on

21  the property to be acquired, it is sufficient in the

22  alternative that the business owner provide edited portions of

23  the business records attributable to the business operation on

24  the property to be acquired for the 4 years preceding

25  notification, in addition to a signed acknowledgment that the

26  records for the business operation on the property to be taken

27  are consolidated with records of other business operations not

28  on the property to be acquired. Business records not provided

29  to the condemning authority under this section may not be used

30  by the business owner either individually or in conjunction

31  with other business records to establish or prove business

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  1  damages in any lawsuit, nor may they be used to establish any

  2  award of attorney's fees. Nothing in this section shall

  3  preclude a court from requiring the production of additional

  4  or supplemental business records, as determined by the court,

  5  in litigation before that court.

  6         (c)  The governmental condemning authority's request

  7  for business records must be in writing, define the term

  8  "business records" within such request by citing the specific

  9  language of paragraph (b) in its entirety, and include a

10  notice of penalty for noncompliance by citing the specific

11  language of this paragraph in its entirety. If the condemning

12  authority's request for business records is not included with

13  a notice under subsection (3), the request must also be

14  accompanied by notice of statutory rights under s. 73.091. The

15  condemning authority may request business records of a

16  business owner only once before a lawsuit is filed. The

17  written request must be sent by certified mail, return receipt

18  requested.

19         (d)  Failure of a business owner to provide, within 60

20  days after the condemning authority's written request, a copy

21  of the business records that are kept in the ordinary course

22  of business, as defined in paragraph (b), and that are within

23  the possession or control of the business owner, precludes the

24  business owner from recovering any accountant's fee for

25  estimating business damages otherwise provided in paragraph

26  (7)(c) or s. 73.091.

27         (e)  After a copy of the business records are provided

28  by the business owners to the governmental condemning

29  authority, the condemning authority may, within 30 days after

30  having been provided the records, make a written request of

31  the business owners for a business records conference. Within

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  1  the written request, the condemning authority shall again

  2  notify the business owners of their statutory rights under s.

  3  73.091 and identify issues regarding the business operations

  4  or business records provided by the business owners. The

  5  business owners and the condemning authority shall make

  6  representatives available for such conference within 60 days

  7  following the written request. Evidence of any written or oral

  8  statements made at the conference shall be without prejudice

  9  to either party in negotiations or in the event a lawsuit is

10  filed. Evidence of any written or oral statements made at the

11  conference, other than a written settlement agreement as

12  provided under paragraph (7)(d), may not be introduced into

13  evidence by either the condemning authority or the business

14  owners in any proceeding under this chapter or chapter 74,

15  with the exception of proceedings under ss. 73.091 and 73.092.

16         (f)  This subsection expires December 31, 2002.

17         (6)  OFFER OF BUSINESS DAMAGES; COUNTEROFFER.--

18         (a)  If a business owner provides a copy of business

19  records as set forth in subsection (5), the governmental

20  condemning authority shall make a written offer of settlement

21  of business damages as to those elements provided in s.

22  73.071(3)(c) within 60 days after receipt of the business

23  records provided by the business owners or, if a conference

24  was requested pursuant to paragraph (5)(e), within 30 days

25  after the conference, whichever occurs later.

26         (b)  Within 60 days after receipt of the written offer

27  of business damages provided in paragraph (a), the business

28  owners shall either accept such offer in writing or make a

29  written counteroffer in settlement of business damages as to

30  those elements provided in s. 73.071(3)(c). The written

31

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  1  acceptance or counteroffer shall be sent to the governmental

  2  condemning authority.

  3         (c)  If an eminent domain action is initiated under

  4  chapter 74, the amount of the written offer of business

  5  damages provided in paragraph (a) shall be deposited by the

  6  governmental condemning authority into the court registry,

  7  available for withdrawal by the business owners to whom the

  8  offer was made, prior to the vesting of title to the property

  9  acquired if the offer was made at least 30 days before the

10  date title vests, otherwise, within 30 days after the offer

11  was made. This paragraph does not entitle the business owner

12  to interest on the difference between the deposit made by the

13  governmental condemning authority under this paragraph and the

14  final award of business damages.

15         (d)  This subsection expires December 31, 2002.

16         (7)  NEGOTIATIONS; MEDIATION; SETTLEMENT IN LIEU OF

17  CONDEMNATION.--

18         (a)  The condemning authority and the property owners

19  and business owners potentially affected by the condemnation

20  of property necessarily acquired for a public purpose must

21  negotiate in good faith.

22         (b)  Subsequent to the condemning authority making an

23  offer under paragraph (1)(a) or paragraph (6)(a), the

24  condemning authority or the party to whom the offer was made

25  may make a written request to have mediation presided over by

26  a mediator certified under s. 44.102. Mediation must occur

27  within 60 days after the written request. The property owners

28  or business owners shall have representatives present at the

29  mediation who have the authority to bind them in settlement.

30  The condemning authority shall have a representative present

31  at the mediation who has the authority to bind it in

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  1  settlement, except that, where applicable, a settlement may be

  2  made subject to the approval of an elected governing board,

  3  commission, or council in the case of a local government.

  4  Either party may give notice to other interested parties with

  5  rights of apportionment otherwise provided under s. 73.101 to

  6  be present at the mediation. Evidence of negotiations or any

  7  written or oral statements made in mediation, other than a

  8  written settlement agreement as provided under paragraph (d),

  9  is not admissible in any subsequent legal proceeding.

10         (c)  If a settlement is reached between the condemning

11  authority and a property owner or business owner prior to a

12  lawsuit being filed, the property owner or business owner who

13  settles compensation claims in lieu of condemnation is

14  entitled to recover costs as provided in s. 73.091 and

15  attorney's fees as provided in s. 73.092(1). The parties, if

16  mutually agreed upon, may stipulate in the alternative to

17  attorney's fees as provided in s. 73.092(2)(a)-(f), and the

18  property owner's or business owner's attorney shall submit to

19  the condemning authority complete time records and a detailed

20  statement of services rendered by date, nature of services

21  performed, time spent performing such services, and costs

22  incurred. If the parties are unable to agree on costs or

23  attorney's fees, the property owner or business owner may file

24  a complaint in circuit court in the county in which the

25  property to be acquired is located to recover costs or

26  attorney's fees from the condemning authority as provided in

27  this paragraph.

28         (d)  If a settlement is reached as a result of any

29  conference, mediation, or other dispute-resolution procedure

30  that is mutually agreed to by the parties, the agreement

31  reached must be in writing. The written agreement must

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  1  incorporate by reference the right-of-way maps and

  2  construction plans upon which the settlement is based and

  3  expressly provide that, if the condemning authority implements

  4  its project in a manner that differs from that shown on the

  5  maps and plans incorporated in the agreement, the property

  6  owners or business owners have the same legal rights that

  7  would have been available to them under law had the matter

  8  been resolved through eminent domain proceedings in circuit

  9  court and the maps and plans had been made part of the record.

10         (e)  This subsection expires December 31, 2002.

11         (8)  NOTICE BY CERTIFIED MAIL.--In each instance where

12  a written notice, offer, counteroffer, initial concern letter,

13  or request is required or allowed by subsections (1)-(7), such

14  document shall be sent by certified mail, return receipt

15  requested. The return of any written notice, offer,

16  counteroffer, initial concern letter, or request as

17  undeliverable by the postal authorities constitutes compliance

18  with this subsection. This subsection expires December 31,

19  2002.

20         (9)  NOTICE OF INTENT REQUIRED.--Before an inverse

21  condemnation action is initiated by a business owner claiming

22  damages as set forth in s. 73.071(3)(c), the business owner

23  must provide the condemning authority with a written notice of

24  intent to file an inverse condemnation action, and, upon such

25  notice being made, the parties shall proceed under subsections

26  (4)-(8).

27         (10)  MODIFICATION OF REQUIREMENTS FOR DISPUTE

28  RESOLUTION.--By mutual agreement of the parties, the

29  provisions of dispute resolution set forth in this section may

30  be modified, except for those provisions set forth in

31

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  1  paragraph (1)(a); subsections (3) and (6); paragraphs (7)(a),

  2  (c), and (d); and subsection (8), which are mandatory.

  3         Section 2.  Effective January 1, 1999, and applicable

  4  to any eminent domain action filed on or after that date,

  5  section 73.071, Florida Statutes, is amended to read:

  6         73.071  Jury trial; compensation; severance damages;

  7  business damages.--

  8         (1)  When the action is at issue, and only upon notice

  9  and hearing to set the cause for trial, the court shall

10  impanel a jury of 12 persons as soon as practical considering

11  the reasonable necessities of the court and of the parties,

12  and giving preference to the trial of eminent domain cases

13  over other civil actions, and submit the issue of compensation

14  to them for determination, which issue shall be tried in the

15  same manner as other issues of fact are tried in the circuit

16  courts.

17         (2)  The amount of such compensation shall be

18  determined as of the date of trial, or the date upon which

19  title passes, whichever shall occur first.

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

21  compensation to be paid, which compensation shall include:

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

23  appropriated.

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

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

26  taking., including, when the action is by the Department of

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

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

29  effect of the taking of the property involved may damage or

30  destroy an established business of more than 5 years'

31  standing, owned by the party whose lands are being so taken,

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  1  located upon adjoining lands owned or held by such party, the

  2  probable damages to such business which the denial of the use

  3  of the property so taken may reasonably cause; any person

  4  claiming the right to recover such special damages shall set

  5  forth in his or her written defenses the nature and extent of

  6  such damages; and

  7         (c)  The probable damages reasonably caused to a

  8  business, if the action is by the Department of Transportation

  9  or a county, municipality, board, district, or other public

10  body for the condemnation of a right-of-way, and either the

11  taking of the property sought to be appropriated as allowed

12  under paragraph (a) or the effect of the taking on the

13  remainder, including, but not limited to, a substantial

14  diminution of access, as allowed under all facts and

15  circumstances for which a property owner could recover under

16  paragraph (b), may damage or destroy an established business

17  of more than 4 years' standing, owned or operated at that

18  location by the party whose property is being taken. Any

19  person claiming the right to recover such special damages must

20  set forth in his or her written defenses the nature and extent

21  of such damages. The total compensation awarded for business

22  damages may not exceed the value of the business.

23  Notwithstanding the provisions of this subsection to the

24  contrary, compensation for business damages shall not be paid

25  either when the taking is by a governmentally owned and

26  operated utility or regional water supply authority and the

27  property taken is limited to an easement not other than for

28  utility purposes, or when an entire parcel is taken for public

29  transit intermodal or multimodal terminals and centers;

30  however, in such instances any business that would otherwise

31  be qualified under this subsection for business damages shall

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  1  be entitled to the cost to relocate the business and downtime

  2  losses associated with the relocation of that business.

  3  Evidence of the ability to mitigate business damages on site

  4  or by relocating all or part of the business to an adjacent

  5  property or to another comparable location in the same market

  6  trade area may be considered when the cost of mitigation is

  7  less than the total business damages claimed, which may not

  8  exceed the value of the business. Any increased costs of

  9  operation and reasonable expenses of mitigation which result

10  from the onsite mitigation plan or from relocating the

11  business to another comparable location in the same market

12  trade area, together with moving costs, downtime losses, and

13  unmitigated damages, may be included when determining business

14  damages. All facts and circumstances may be considered under

15  this paragraph to put a business owner in as good a position

16  financially as he or she would have been without condemnation,

17  no better and no worse.

18         (d)(c)  Where the appropriation is of property upon

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

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

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

22  effect of the taking of the property involved requires the

23  relocation of such mobile home, the reasonable removal or

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

25  exceed the replacement value of such mobile home.  The

26  compensation paid to a mobile home owner under this paragraph

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

28  expenses of removal or relocation.  Any mobile home owner

29  claiming the right to such removal or relocation expenses

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

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

                                  17

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  1  any governmental authority exercising its power of eminent

  2  domain when reasonable removal or relocation expenses must be

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

  4  agency rule applicable to such exercise of power.

  5         (4)  When the action is by the Department of

  6  Transportation, county, municipality, board, district, or

  7  other public body for the condemnation of a road, canal,

  8  levee, or water control facility right-of-way, the

  9  enhancement, if any, in value of the remaining adjoining

10  property of the defendant property owner by reason of the

11  construction or improvement made or contemplated by the

12  petitioner shall be offset against the damage, if any,

13  resulting to such remaining adjoining property of the

14  defendant property owner by reason of the construction or

15  improvement. However, such enhancement in the value shall not

16  be offset against the value of the property appropriated, and

17  if such enhancement in value shall exceed the damage, if any,

18  to the remaining adjoining property, there shall be no

19  recovery over against such property owner for such excess.

20         (5)  Any increase or decrease in the value of any

21  property to be acquired which occurs after the scope of the

22  project for which the property is being acquired is known in

23  the market, and which is solely a result of the knowledge of

24  the project location, shall not be considered in arriving at

25  the value of the property acquired.  For the purpose of this

26  section, the scope of the project for which the property is

27  being acquired shall be presumed to be known in the market on

28  or after the condemnor executes a resolution which depicts the

29  location of the project.

30         (6)  The jury shall view the subject property upon

31  demand by any party or by order of the court.

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  1         (7)  If the jury cannot agree on a verdict the court

  2  shall discharge them, impanel a new jury, and proceed with the

  3  trial.

  4         (8)  The provisions of this section relating to the

  5  appropriation of entire parcels and evidence of off-site

  6  mitigation shall not apply after December 31, 2002.

  7         Section 3.  Paragraph (c) of subsection (1) of section

  8  73.092, Florida Statutes, is amended to read:

  9         73.092  Attorney's fees.--

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

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

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

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

14  be awarded in accordance with the following schedule:

15         1.  Twenty-five Thirty-three percent of any benefit up

16  to $250,000; plus

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

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

19         3.  Fifteen Twenty percent of any portion of the

20  benefit exceeding $1 million.

21         Section 4.  Paragraph (g) of subsection (5) of section

22  337.25, Florida Statutes, is amended to read:

23         337.25  Acquisition, lease, and disposal of real and

24  personal property.--

25         (5)  The department may convey a leasehold interest for

26  commercial or other purposes, in the name of the state, to any

27  land, building, or other property, real or personal, which was

28  acquired under the provisions of subsection (1).

29         (g)  A No lease executed under this subsection may not

30  be used utilized by the lessee to establish the 4 5 years'

31  standing required by s. 73.071(3)(c) s. 73.071(3)(b) if the

                                  19

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  1  business had not been established for 4 5 years on the date

  2  title passed to the department.

  3         Section 5.  The Legislature finds that a proper and

  4  legitimate state purpose is served when business owners are

  5  extended a fair and reasonable valuation of their business and

  6  given compensation for damages to their businesses or

  7  diminution of access caused by governmental condemning

  8  authorities. Therefore, the Legislature determines and

  9  declares that this act fulfills an important state interest.

10         Section 6.  Subsection (2) of section 337.27,

11  subsection (2) of section 348.0008, subsection (2) of section

12  348.759, subsection (2) of section 348.957, and section

13  337.271, Florida Statutes, are repealed.

14         Section 7.  By January 1, 2002, the Department of

15  Transportation shall submit a report to the Governor, the

16  President of the Senate, and the Speaker of the House of

17  Representatives on the cost and effectiveness of the statutory

18  changes contained in sections 1, 2, and 4 of this act.

19         Section 8.  A working group is established, which shall

20  be composed of a representative from each of the following:

21  the Department of Transportation, the Department of Banking

22  and Finance, the Florida Association of Counties, the Florida

23  Transportation Builders Association, the Florida

24  Transportation Commission, the Florida Metropolitan Planning

25  Organization Advisory Council, the Florida Division of the

26  National Federation of Independent Businesses, the Florida

27  Petroleum Marketers Association, the Florida Retail

28  Federation, the Florida United Business Association, the

29  Florida Restaurant Association, and the Florida Farm Bureau

30  Federation. The working group shall analyze and report on the

31  feasibility of establishing programs for assisting businesses

                                  20

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  1  adversely affected by transportation projects and make

  2  recommendations on establishing alternative methods of

  3  identifying business damage entitlements subsequent to

  4  completion of project construction in order to more accurately

  5  assess business damages. The report shall be submitted to the

  6  Governor, the President of the Senate, and the Speaker of the

  7  House of Representatives by January 1, 1999, and may address,

  8  but need not be limited to, the following:

  9         (1)  Business loan programs with low or no interest

10  rates;

11         (2)  Business grant programs;

12         (3)  Credits for, and exemptions from, taxes or fees

13  for impacted businesses;

14         (4)  Use of state surcharges on local fuel tax revenues

15  to fund local business assistance programs; and

16         (5)  Use of alternative dispute-resolution approaches

17  to resolving business damage claims.

18

19  Such programs should be available only if a business can

20  demonstrate actual revenue losses based on a comparison of

21  business records before and after the acquisition and

22  completion of construction.

23         Section 9.  Section 215.20, Florida Statutes, is

24  amended to read:

25         215.20  Certain income and certain trust funds to

26  contribute to the General Revenue Fund.--

27         (1)  A service charge of 7 percent, representing the

28  estimated pro rata share of the cost of general government

29  paid from the General Revenue Fund, shall be deducted from all

30  income of a revenue nature deposited in all trust funds except

31  those enumerated in s. 215.22.  Income of a revenue nature

                                  21

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  1  shall include all earnings received or credited by such trust

  2  funds, including the interest or benefit received from the

  3  investment of the principal of such trust funds as may be

  4  permitted by law.  This provision shall be construed in favor

  5  of the General Revenue Fund in each instance. All such

  6  deductions shall be deposited in the General Revenue Fund.

  7         (2)  Notwithstanding the provisions of subsection (1),

  8  funds collected for peanut, soybean, or tobacco marketing

  9  orders pursuant to chapter 570 and the Florida Citrus

10  Advertising Trust Fund shall be subject to a 3-percent service

11  charge, to be deposited in the General Revenue Fund.

12         (3)  A service charge of 0.3 percent shall be deducted

13  from income of a revenue nature deposited in the trust funds

14  enumerated in subsection (4).  Income of a revenue nature

15  shall include all earnings received or credited by such trust

16  funds, including the interest or benefit received from the

17  investment of the principal of such trust funds as may be

18  permitted by law.  This provision shall be construed in favor

19  of the General Revenue Fund in each instance.  All such

20  deductions shall be deposited in the General Revenue Fund.

21         (4)  The income of a revenue nature deposited in the

22  following described trust funds, by whatever name designated,

23  is that from which the deductions authorized by subsection (3)

24  shall be made:

25         (a)  The Fuel Tax Collection Trust Fund created by s.

26  206.875, except that, effective July 1, 2004, a deduction may

27  not be made from the proceeds of the county fuel tax

28  distributed under s. 206.60.

29         (b)  All income derived from outdoor advertising and

30  overweight violations which is deposited in the State

31  Transportation Trust Fund created by s. 206.46.

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  1         (c)  All taxes levied on motor fuels other than

  2  gasoline levied pursuant to the provisions of s. 206.87(1)(a).

  3         (d)  The State Alternative Fuel User Fee Clearing Trust

  4  Fund established pursuant to s. 206.879(1).

  5         (e)  The Local Alternative Fuel User Fee Clearing Trust

  6  Fund established pursuant to s. 206.879(2).

  7         (f)  The Cigarette Tax Collection Trust Fund created by

  8  s. 210.20.

  9         (g)  The Nonmandatory Land Reclamation Trust Fund

10  established pursuant to s. 211.3103.

11         (h)  The Phosphate Research Trust Fund established

12  pursuant to s. 211.3103.

13         (i)  The Land Reclamation Trust Fund established

14  pursuant to s. 211.32(1)(f).

15         (j)  The Educational Certification and Service Trust

16  Fund created by s. 231.30.

17         (k)  The trust funds administered by the Division of

18  Historical Resources of the Department of State.

19         (l)  The Marine Resources Conservation Trust Fund

20  created by s. 370.0608, with the exception of those fees

21  collected for recreational saltwater fishing licenses as

22  provided in s. 370.0605.

23         (m)  The Local Option Fuel Tax Trust Fund created

24  pursuant to s. 336.025. This paragraph is repealed effective

25  July 1, 2004.

26         (n)  The Florida Public Service Regulatory Trust Fund

27  established pursuant to s. 350.113.

28         (o)  The State Game Trust Fund established by s.

29  372.09.

30         (p)  The Special Disability Trust Fund created by s.

31  440.49.

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  1         (q)  The Workers' Compensation Administration Trust

  2  Fund created by s. 440.50(1)(a).

  3         (r)  The Employment Security Administration Trust Fund

  4  created by s. 443.211(1).

  5         (s)  The Special Employment Security Administration

  6  Trust Fund created by s. 443.211(2).

  7         (t)  The Professional Regulation Trust Fund established

  8  pursuant to s. 455.219.

  9         (u)  The Speech-Language Pathology and Audiology Trust

10  Fund.

11         (v)  The Division of Licensing Trust Fund established

12  pursuant to s. 493.6117.

13         (w)  The Division of Florida Land Sales, Condominiums,

14  and Mobile Homes Trust Fund established pursuant to s.

15  498.019.

16         (x)  The trust fund of the Division of Hotels and

17  Restaurants, as defined in s. 509.072, with the exception of

18  those fees collected for the purpose of funding of the

19  hospitality education program as stated in s. 509.302.

20         (y)  The trust funds administered by the Division of

21  Pari-mutuel Wagering and the Florida Quarter Horse Racing

22  Promotion Trust Fund.

23         (z)  The General Inspection Trust Fund and subsidiary

24  accounts thereof, unless a different percentage is authorized

25  by s. 570.20.

26         (aa)  The Florida Citrus Advertising Trust Fund created

27  by s. 601.15(7), including transfers from any subsidiary

28  accounts thereof, unless a different percentage is authorized

29  in that section.

30         (bb)  The Agents and Solicitors County Tax Trust Fund

31  created by s. 624.506.

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  1         (cc)  The Insurance Commissioner's Regulatory Trust

  2  Fund created by s. 624.523.

  3         (dd)  The Financial Institutions' Regulatory Trust Fund

  4  established pursuant to s. 655.049.

  5         (ee)  The Crimes Compensation Trust Fund established

  6  pursuant to s. 960.21.

  7         (ff)  The Records Management Trust Fund established

  8  pursuant to s. 257.375.

  9         (gg)  The Alcoholic Beverage and Tobacco Trust Fund

10  established pursuant to s. 561.025.

11         (hh)  The Health Care Trust Fund established pursuant

12  to s. 455.2205.

13         (ii)  The Police and Firefighters' Premium Tax Trust

14  Fund established within the Division of Retirement of the

15  Department of Management Services.

16

17  The enumeration of the foregoing moneys or trust funds shall

18  not prohibit the applicability thereto of s. 215.24 should the

19  Governor determine that for the reasons mentioned in s. 215.24

20  the money or trust funds should be exempt herefrom, as it is

21  the purpose of this law to exempt income from its force and

22  effect when, by the operation of this law, federal matching

23  funds or contributions or private grants to any trust fund

24  would be lost to the state.

25         (5)  There is appropriated from the proper respective

26  trust funds from time to time such sums as may be necessary to

27  pay to the General Revenue Fund the service charges imposed by

28  this section.

29         (6)  Notwithstanding subsection (1), the service charge

30  provided for by subsection (1) which is deducted from the

31  proceeds of the county fuel tax distributed under s. 206.60

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  1  and from the Local Option Fuel Tax Trust Fund shall be reduced

  2  as follows:

  3         (a)  For the period July 1, 1998, through June 30,

  4  1999, the rate of this charge shall be 6 percent.

  5         (b)  For the period July 1, 1999, through June 30,

  6  2000, the rate of this charge shall be 5 percent.

  7         (c)  For the period July 1, 2000, through June 30,

  8  2001, the rate of this charge shall be 4 percent.

  9         (d)  For the period July 1, 2001, through June 30,

10  2002, the rate of this charge shall be 3 percent.

11         (e)  For the period July 1, 2002, through June 30,

12  2003, the rate of this charge shall be 2 percent.

13         (f)  For the period July 1, 2003, through June 30,

14  2004, the rate of this charge shall be 1 percent.

15         (g)  Beginning July 1, 2004, no service charge shall be

16  deducted from the proceeds of the county fuel tax distributed

17  under s. 206.60 or from the Local Option Fuel Tax Trust Fund

18  under subsection (1).

19         Section 10.  Effective July 1, 2004, paragraphs (t) and

20  (u) are added to subsection (1) of section 215.22, Florida

21  Statutes, to read:

22         215.22  Certain income and certain trust funds

23  exempt.--

24         (1)  The following income of a revenue nature or the

25  following trust funds shall be exempt from the deduction

26  required by s. 215.20(1):

27         (t)  The proceeds of the county fuel tax distributed

28  under s. 206.60.

29         (u)  The Local Option Fuel Tax Trust Fund.

30         Section 11.  Subsections (6), (7), and (8) are added to

31  section 253.82, Florida Statutes, to read:

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  1         253.82  Title of state or private owners to Murphy Act

  2  lands.--

  3         (6)(a)  All reservations of easements on deeds by the

  4  Board of Trustees of the Internal Improvement Trust Fund

  5  conveying land acquired under chapter 18296, Laws of Florida,

  6  1937, are hereby vested, by operation of law and without the

  7  necessity of instruments of conveyance from the Board of

  8  Trustees of the Internal Improvement Trust Fund, in the

  9  governmental entity having right and title to the road to

10  which the reservations are adjacent. All reservations adjacent

11  to a road that was designated as a state road at the time of

12  the reservation, which road is currently held by the state,

13  are conveyed to the Department of Transportation. All

14  reservations adjacent to a road that was designated as a state

15  road at the time of the reservation, which road is located in

16  an unincorporated area of a county or owned by the county

17  within any incorporated area, are conveyed to the respective

18  county. Any other reservation within an incorporated area

19  adjacent to a road that was designated as a state road at the

20  time of the reservation, which reservation is not otherwise

21  conveyed to the state or the county, is conveyed to the

22  incorporated area. The conveyance includes all rights, title,

23  and interest in the reservation held by the Board of Trustees

24  of the Internal Improvement Trust Fund.

25         (b)  Each entity that holds title to Murphy Act

26  reservations must establish a procedure for reviewing any deed

27  that contains a reservation when a review is requested or a

28  road project is anticipated. The review process must provide

29  for:

30         1.  A determination of whether the language of the deed

31  created a reservation at the time of the original conveyance.

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  1         2.  A review of any release of the reservation provided

  2  by the property owner.

  3         3.  The recording of a notice of the nonexistence of a

  4  reservation if reservation language in the deed does not

  5  impact the property.

  6         4.  A determination of whether any or all of the

  7  reservation may be released, and a form for recording the

  8  release.

  9         5.  A process to allow for review through mediation if

10  requested by the property owner or through binding arbitration

11  under chapter 44.

12

13  Any fee charged may not exceed the actual cost to review the

14  deed, perform an appeal, and pay any recording expenses. Any

15  such fee may not exceed $300.

16         (c)1.  Any owner of property encumbered by a Murphy Act

17  reservation who has been denied a release of all or part of

18  the reservation or who has received notice of a governmental

19  entity's intent to preserve the reservation under s. 712.05,

20  may appeal to the entity and show that the reservation

21  substantially denies the property owner the current economic

22  use of the property held by the owner. For purposes of this

23  determination, the term "current economic use" means the use

24  of the property on the date notice of the easement is filed

25  under s. 712.05.

26         2.  Upon a determination by the governmental entity

27  that the reservation substantially denies the property owner

28  the current economic use of the property held by the owner,

29  the governmental entity must purchase the real property and

30  improvements not retained by the property owner in fee simple

31

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  1  title or release all or part of the reservation as necessary

  2  to allow for beneficial use of the property.

  3         3.  If the governmental entity and property owner are

  4  unable to agree as to whether the reservation substantially

  5  denies the current economic use of the property or as to the

  6  purchase price, the property owner may request mediation or

  7  binding arbitration under chapter 44 to resolve these issues.

  8         4.  Before the payment of any compensation, the

  9  property owner must provide to the governmental entity copies

10  of any title insurance policies and notice of any compensation

11  received from a title company with respect to the easement.

12         (7)  The process for release of any road reservation

13  covered by this section or payment for property impacted by

14  the use of a reservation covered by this section shall be

15  solely in accordance with this section. Any action for the

16  taking of property related to road construction is separate

17  and distinct from an action under this section.

18         (8)  The governmental entity is not liable for

19  attorney's fees or costs incurred by the owner in establishing

20  the impact of the road reservation on the property.

21         Section 12.  Section 712.04, Florida Statutes, is

22  amended to read:

23         712.04  Interests extinguished by marketable record

24  title.--Subject to the matters stated in s. 712.03, such

25  marketable record title shall be free and clear of all

26  estates, interests, claims, or charges whatsoever, the

27  existence of which depends upon any act, title transaction,

28  event or omission that occurred prior to the effective date of

29  the root of title.  All such estates, interests, claims, or

30  charges, however denominated, whether such estates, interests,

31  claims, or charges are or appear to be held or asserted by a

                                  29

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  1  person sui juris or under a disability, whether such person is

  2  within or without the state, whether such person is natural or

  3  corporate, or is private or governmental, are hereby declared

  4  to be null and void, except that this chapter shall not be

  5  deemed to affect any right, title, or interest of the United

  6  States, Florida, or any of its officers, boards, commissions,

  7  or other agencies reserved in the patent or deed by which the

  8  United States, Florida, or any of its agencies parted with

  9  title. However, all reservations of easements in deeds by the

10  Board of Trustees of the Internal Improvement Trust Fund

11  conveying land acquired under chapter 18296, Laws of Florida,

12  1937, shall be extinguished by the Marketable Record Title Act

13  on July 1, 2001, subject to the provisions of s. 712.03, and

14  further subject to the right of any governmental entity that

15  holds title to the reservations to preserve such reservations

16  that are necessary for future transportation projects in

17  adopted transportation plans by filing notice under s. 712.05,

18  before July 1, 2001.

19         Section 13.  Subsection (3) is added to section 712.05,

20  Florida Statutes, to read:

21         712.05  Effect of filing notice.--

22         (3)  Any governmental entity that claims a road

23  reservation pursuant to a deed conveyed under the Murphy Act

24  may preserve the reservation, or any portion thereof,

25  necessary for future transportation projects in adopted

26  transportation plans and protect the reservation from

27  extinguishment by the operation of this chapter by filing for

28  record, prior to July 1, 2001, a notice, in writing, in

29  accordance with this chapter. The notice shall preserve the

30  reservation or portion thereof for 10 years following the date

31  of record if the reservation is used or identified by the

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  1  governmental entity in the final design plans of a road

  2  project scheduled for construction to begin before the end of

  3  the 10-year period. Any reservation used or identified in the

  4  final design plans of a road project scheduled for

  5  construction to begin before the end of the 10-year period is

  6  not extinguished.

  7         Section 14.  The Legislature finds that balancing

  8  property interests of private citizens and governmental

  9  entities is an important function of the Legislature.

10  Therefore, the Legislature finds that this act fulfills an

11  important state interest.

12         Section 15.  Subsection (3) is added to section 479.15,

13  Florida Statutes, to read:

14         479.15  Harmony of regulations.--

15         (3)  It is the express intent of the Legislature to

16  limit the state right-of-way acquisition costs in eminent

17  domain proceedings by preempting county and municipal

18  regulation of outdoor advertising signs located adjacent to

19  any part of the state highway system when the state is making

20  improvement to such highways, the provisions of section

21  479.155 notwithstanding. Whenever land is acquired upon which

22  is situated a lawful nonconforming sign, the sign may, upon

23  receipt of a waiver of federal regulations, and at the

24  election of its owner, be relocated or reconstructed adjacent

25  to the new right-of-way at the same station along the roadway

26  and any local ordinance to the contrary is preempted.

27         Section 16.  Subsection (1) of section 337.19, Florida

28  Statutes, is amended to read:

29         337.19  Suits by and against department; limitation of

30  actions; forum.--

31

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  1         (1)  Suits at law and in equity may be brought and

  2  maintained by and against the department on any contract claim

  3  under contract for work done arising from the breach of an

  4  express provision or an implied covenant of a written

  5  agreement or a written directive issued by the department

  6  pursuant to the written agreement. In any such suit, the

  7  department and the contractor shall have all of the same

  8  rights, obligations, remedies, and defenses as a private

  9  person under a like contract, except that no liability may be

10  based on an oral modification of the written contract or

11  written directive. However, this section shall not be

12  construed to in any way prohibit the department from limiting

13  its liability or damages through provisions in its contracts.

14  Notwithstanding anything to the contrary contained herein, no

15  employee or agent of the department may be held personally

16  liable to an extent greater than that under s. 768.28;

17  however, provided, that no suit sounding in tort shall be

18  maintained against the department.

19         Section 17.  Except as otherwise expressly provided in

20  this act, this act shall take effect upon becoming a law.

21

22

23

24

25

26

27

28

29

30

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CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 1998               CS for CS for CS for SB 92
    306-2203-98




  1          STATEMENT OF SUBSTANTIAL CHANGES CONTAINED IN
                       COMMITTEE SUBSTITUTE FOR
  2                           CS/CS SB 92

  3

  4  The CS provides that business records not provided to the
    condemning authority may not be used by the business owner
  5  either individually or in conjunction with other business
    records to establish or prove business damages in any lawsuit,
  6  nor may they be used to establish any award of attorney's
    fees.  This does not preclude a court from requiring the
  7  production of additional or supplemental business records, as
    determined by the court in litigation before that court.
  8
    The CS transfers the ownership of road easements on property
  9  acquired by the state under the Murphy Act to the governmental
    entity currently having jurisdiction over the adjacent
10  roadway. The CS provides that these easements will expire
    unless used by 2011, and provides a hardship provision for
11  payment to impacted property owners. The  governmental entity
    receiving jurisdiction must develop a process for evaluating
12  the need for the easement.

13  The CS also provides that the 7.3 percent service charge for
    the cost of general government which is deducted from the
14  proceeds of the county fuel tax and from the Local Option Fuel
    Tax Trust Fund, will be reduced over a specified period and
15  will be eliminated for those funds on July 1, 2004.

16  The CS provides that whenever land is acquired where there is
    a lawful nonconforming outdoor advertising sign, the sign may,
17  upon receipt of a waiver of federal regulations, and at the
    election of its owner, be relocated or reconstructed adjacent
18  to the new right-of-way at the same station along the roadway
    and any local ordinance to the contrary is preempted.
19
    The CS removes the provision relating to the valuation of
20  agricultural property.

21  The CS provides that suits at law and in equity may be brought
    and maintained by and against the department on any claim
22  arising from breach of express or implied provision of a
    written agreement or a written directive issued by the
23  department pursuant to the written agreement.  In any such
    suit, the department and contractor will have all the same
24  rights, obligations, remedies and defenses as a private person
    under a like contract, except that no liability may be based
25  on an oral modification of the written contract or written
    directive.  The section further amended to provide that no
26  employee or agent of the department may be held personally
    liable to an extent greater than described under s. 768.28,
27  F.S.

28  The CS provides that subsections (2), (4), (5), (6), (7), and
    (8) or s. 73.0511,F.S., will expire December 31, 2002.
29  Further, the provisions of s. 73.071, F.S., relating to the
    appropriation of entire parcels and evidence of off-site
30  mitigation will not apply after December 31, 2002.

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