Senate Bill 0940c2
CODING: Words stricken are deletions; words underlined are additions.
    Florida Senate - 1999                     CS for CS for SB 940
    By the Committees on Fiscal Policy; and Comprehensive
    Planning, Local and Military Affairs
    309-1994-99
  1                      A bill to be entitled
  2         An act relating to eminent domain; creating s.
  3         73.015, F.S.; requiring presuit negotiation
  4         before an action in eminent domain may be
  5         initiated under ch. 73, F.S., or ch. 74, F.S.;
  6         providing requirements for the condemning
  7         authority; requiring the condemning authority
  8         to give specified notices; requiring a written
  9         offer of purchase and appraisal and specifying
10         the time period during which the owner may
11         respond to the offer before a condemnation
12         lawsuit may be filed; providing procedures;
13         allowing a business owner to claim business
14         damage within a specified time period;
15         providing circumstances under which the court
16         must strike a business-damage defense;
17         providing procedures for business-damage
18         claims; providing for nonbinding mediation;
19         requiring the condemning authority to pay
20         reasonable costs and attorney's fees of a
21         property owner; allowing the property owner to
22         file a complaint in circuit court to recover
23         attorney's fees and costs, if the parties
24         cannot agree on the amount; providing that
25         certain evidence is inadmissible in specified
26         proceedings; amending s. 73.092, F.S.; deleting
27         provisions relating to attorney's fees for
28         business-damage claims; amending ss. 127.01,
29         166.401, F.S.; restricting the exercise by
30         counties and municipalities of specified
31         eminent domain powers granted to the Department
                                  1
CODING: Words stricken are deletions; words underlined are additions.
    Florida Senate - 1999                     CS for CS for SB 940
    309-1994-99
  1         of Transportation; repealing ss. 337.27(2),
  2         337.271, 348.0008(2), 348.759(2), 348.957(2),
  3         F.S., relating to limiting the acquisition cost
  4         of lands and property acquired through eminent
  5         domain proceedings by the Department of
  6         Transportation, the Orlando-Orange County
  7         Expressway Authority, or the Seminole County
  8         Expressway Authority, or under the Florida
  9         Expressway Authority Act, and relating to the
10         notice that the Department of Transportation
11         must give to a fee owner at the inception of
12         negotiations to acquire land; amending s.
13         479.15, F.S.; prescribing duties of local
14         governments with respect thereto; providing an
15         effective date.
16
17  Be It Enacted by the Legislature of the State of Florida:
18
19         Section 1.  Section 73.015, Florida Statutes, is
20  created to read:
21         73.015  Presuit negotiation.--
22         (1)  Effective July 1, 2000, before an eminent domain
23  proceeding is brought under this chapter or chapter 74, the
24  condemning authority must attempt to negotiate in good faith
25  with the fee owner of the parcel to be acquired, must provide
26  the owner with a written offer and, if requested, a copy of
27  the appraisal upon which the offer is based, and must attempt
28  to reach an agreement regarding the amount of compensation to
29  be paid for the parcel.
30
31
                                  2
CODING: Words stricken are deletions; words underlined are additions.
    Florida Senate - 1999                     CS for CS for SB 940
    309-1994-99
  1         (a)  At the inception of negotiation for acquisition,
  2  the condemning authority must notify the fee owner of the
  3  following:
  4         1.  That all or a portion of his or her property is
  5  necessary for a project;
  6         2.  The nature of the project for which the parcel is
  7  considered necessary, and the parcel designation of the
  8  property to be acquired;
  9         3.  That, within 15 business days after receipt of a
10  request by the owner, the condemning authority will provide
11  right-of-way maps, construction plans, or other documents that
12  depict the proposed taking, and a copy of the appraisal report
13  upon which the offer is based;
14         4.  The fee owner's statutory rights under ss. 73.091
15  and 73.092; and
16         5.  The fee owner's rights and responsibilities under
17  paragraphs (b) and (c) and subsection (4).
18         (b)  The condemning authority must provide a written
19  offer of purchase to the fee owner. The owner must be given at
20  least 30 days to respond to the offer before the condemning
21  authority files a condemnation proceeding for the parcel
22  identified in the offer.
23         (c)  The notice and written offer must be sent by
24  certified mail, return receipt requested, to the fee owner's
25  last known address listed on the county ad valorem tax roll.
26  Alternatively, the notice and written offer may be personally
27  delivered to the fee owner of the property. If there is more
28  than one owner of a property, notice to one owner constitutes
29  notice to all owners of the property. The return of the notice
30  as undeliverable by the postal authorities constitutes
31  compliance with this provision. The condemning authority is
                                  3
CODING: Words stricken are deletions; words underlined are additions.
    Florida Senate - 1999                     CS for CS for SB 940
    309-1994-99
  1  not required to give notice or a written offer to a person who
  2  acquires title to the property after the notice required by
  3  this section has been given.
  4         (d)  Notwithstanding this subsection, with respect to
  5  lands acquired under s. 259.041, the condemning authority is
  6  not required to give the fee owner the current appraisal
  7  before executing an option contract.
  8         (2)  Effective July 1, 2000, before an eminent domain
  9  proceeding is brought under this chapter or chapter 74 by the
10  Department of Transportation or by a county, municipality,
11  board, district, or other public body for the condemnation of
12  right-of-way, the condemning authority must make a good-faith
13  effort to notify the property owners, including lessees, who
14  operate a business located on the property to be acquired of
15  their statutory rights under s. 73.091 and of the items listed
16  in subparagraphs (1)(a)1.-3. The notice must be sent by
17  certified mail, return receipt requested, or by personal
18  delivery to any person or employee operating the business. If
19  a business does not appear to be open and operating at the
20  time notice is attempted, and efforts to notify the owner by
21  certified mail and personal delivery have failed, the notice
22  must be published in a newspaper at least once each week for
23  two consecutive weeks in the county where the property is
24  located. However, if the property is located in a municipality
25  and a newspaper is published there, the notice must be
26  published in such a newspaper. Notice to one owner of a
27  multiple ownership business constitutes notice to all business
28  owners of that business. The condemning authority is not
29  required to give notice to a business owner who acquires an
30  interest in the business after the notice required by this
31  section has been given. Once notice has been made to business
                                  4
CODING: Words stricken are deletions; words underlined are additions.
    Florida Senate - 1999                     CS for CS for SB 940
    309-1994-99
  1  owners under this subsection, the condemning authority may
  2  file a condemnation proceeding pursuant to chapter 73 or
  3  chapter 74 for the property identified in the notice.
  4         (a)  If the business owner intends to claim business
  5  damages under s. 73.071(3)(b), the business owner must, within
  6  120 days after either receipt of the notice or the date of
  7  final publication of notice as required by this subsection, or
  8  at a later time mutually agreed to by the condemning authority
  9  and the business owner, submit to the condemning authority a
10  good-faith written offer to settle any claims of business
11  damage. The written offer must be sent to the condemning
12  authority by certified mail, return receipt requested. Absent
13  a showing of a good-faith justification for the failure to
14  submit a business-damage offer within 120 days, the court must
15  strike the business owner's claim for business damages in any
16  condemnation proceeding. If the court finds that the business
17  owner has made a showing of a good-faith justification for the
18  failure to timely submit a business damage offer, the court
19  shall grant the business owner up to 120 days within which to
20  submit a business-damage offer, which the condemning authority
21  must respond to within 90 days.
22         1.  The business-damage offer must include an
23  explanation of the nature, extent, and monetary amount of such
24  damage and must be prepared by either the owner or a certified
25  public accountant. The business owner shall also provide to
26  the condemning authority copies of the owner's business
27  records that substantiate the good-faith offer to settle the
28  business damage claim. If additional information is needed
29  beyond data that may be obtained from business records
30  existing at the time of the offer, the business owner and
31  condemning authority may agree on a schedule for the
                                  5
CODING: Words stricken are deletions; words underlined are additions.
    Florida Senate - 1999                     CS for CS for SB 940
    309-1994-99
  1  submission of such information. Business records that are not
  2  provided to the condemning authority under this section may
  3  not be used by the business owner either individually or in
  4  conjunction with other business records to establish or prove
  5  business damage, nor may they be used to establish an award of
  6  attorney's fees.
  7         2.  As used in this paragraph, the term "business
  8  records" includes, but is not limited to, copies of federal
  9  income tax returns, federal income tax withholding statements,
10  federal miscellaneous income tax statements, state sales tax
11  returns, balance sheets, profit and loss statements, state
12  corporate income tax returns for the 5 years preceding
13  notification which are attributable to the business operation
14  on the property to be acquired, and other records relied upon
15  by the business owner that substantiate the business-damage
16  claim.
17         (b)  Within 90 days after receipt of the good-faith
18  business-damage offer and accompanying business records, the
19  condemning authority must, by certified mail, accept or reject
20  the business owner's offer or make a counteroffer.
21         (3)  At any time in the presuit negotiation process,
22  the parties may agree to submit the compensation or
23  business-damage claims to nonbinding mediation. The parties
24  shall agree upon a mediator certified under s. 44.102.
25         (4)  Upon submission of an invoice that complies with
26  the requirements of this subsection, the condemning authority
27  shall pay all reasonable costs, including reasonable
28  attorney's fees and reasonable mediation costs, incurred on
29  behalf of a fee or business property owner under this section
30  for presuit negotiations. In order to qualify for reasonable
31  attorney's fees and costs for presuit negotiations, the fee or
                                  6
CODING: Words stricken are deletions; words underlined are additions.
    Florida Senate - 1999                     CS for CS for SB 940
    309-1994-99
  1  business owner must have complied with the requirements of
  2  this section and must be entitled to compensation from the
  3  condemning authority under this chapter. The invoice must
  4  include complete time records and a detailed statement of
  5  services performed, including the date on which the service
  6  was performed, the hourly rate charged for the service, and
  7  the person performing the service.
  8         (a)  Attorney's fees for presuit negotiations under
  9  this section regarding the amount of compensation to be paid
10  for the land, severance damages, and improvements must be
11  calculated in accordance with s. 73.092(1). When business
12  damages are paid, attorney's fees incurred in presentation of
13  the business owner's good-faith offer under paragraph (2)(a)
14  must be calculated in accordance with s. 73.092(2), (3), (4),
15  and (5), and any subsequent fees which may be payable must be
16  calculated as provided in s. 73.092(1), based on the
17  difference between the final payment of business damages and
18  the counteroffer to the business owner's offer by the
19  condemning authority. Failure of the condemning authority to
20  respond to a business-damage offer as provided in this section
21  must be deemed to be a counteroffer of zero dollars.
22         (b)  Presuit costs must be presented, calculated, and
23  awarded in the same manner as provided in s. 73.091, after
24  submission by the business or property owner to the condemning
25  authority of all appraisal reports, business damage reports,
26  or other work-products for which recovery is sought, and upon
27  transfer of title of the real property by closing, upon
28  payment of any amounts due for business damages, or upon final
29  judgment.
30         (c)  If the parties cannot agree on the amount of costs
31  and attorney's fees to be paid by the condemning authority,
                                  7
CODING: Words stricken are deletions; words underlined are additions.
    Florida Senate - 1999                     CS for CS for SB 940
    309-1994-99
  1  the property owner may file a complaint in the circuit court
  2  in the county in which the property is located to recover
  3  attorney's fees and costs.
  4         (5)  Evidence of negotiations, or of any written or
  5  oral statements used in mediation or negotiations between the
  6  parties under this section is inadmissible in any condemnation
  7  proceeding, except in a proceeding to determine reasonable
  8  costs and attorney's fees.
  9         Section 2.  Section 73.092, Florida Statutes, is
10  amended to read:
11         73.092  Attorney's fees.--
12         (1)  Except as otherwise provided in this section and
13  s. 73.015, the court, in eminent domain proceedings, shall
14  award attorney's fees based solely on the benefits achieved
15  for the client.
16         (a)  As used in this section, the term "benefits" means
17  the difference, exclusive of interest, between the final
18  judgment or settlement and the last written offer made by the
19  condemning authority before the defendant hires an attorney.
20  If no written offer is made by the condemning authority before
21  the defendant hires an attorney, benefits must be measured
22  from the first written offer after the attorney is hired.
23         1.  In determining attorney's fees in prelitigation
24  negotiations, benefits do not include amounts awarded for
25  business damages unless the business owner provided to the
26  condemning authority, upon written request, prior to
27  litigation, those financial and business records kept by the
28  owner in the ordinary course of business.
29         2.  In determining attorney's fees subsequent to the
30  filing of litigation, if financial and business records kept
31  by the owner in the ordinary course of business were not
                                  8
CODING: Words stricken are deletions; words underlined are additions.
    Florida Senate - 1999                     CS for CS for SB 940
    309-1994-99
  1  provided to the condemning authority prior to litigation,
  2  benefits for amounts awarded for business damages must be
  3  based on the first written offer made by the condemning
  4  authority within 120 days after the filing of the eminent
  5  domain action. In the event the petitioner makes a discovery
  6  request for a defendant's financial and business records kept
  7  in the ordinary course of business within 45 days after the
  8  filing of that defendant's answer, then the 120-day period
  9  shall be extended to 60 days after receipt by petitioner of
10  those records. If the condemning authority makes no written
11  offer to the defendant for business damages within the time
12  period provided in this section, benefits for amounts awarded
13  for business damages must be based on the difference between
14  the final judgment or settlement and the last written offer
15  made by the condemning authority before the defendant hired an
16  attorney.
17         (b)  The court may also consider nonmonetary benefits
18  obtained for the client through the efforts of the attorney,
19  to the extent such nonmonetary benefits are specifically
20  identified by the court and can, within a reasonable degree of
21  certainty, be quantified.
22         (c)  Attorney's fees based on benefits achieved shall
23  be awarded in accordance with the following schedule:
24         1.  Thirty-three percent of any benefit up to $250,000;
25  plus
26         2.  Twenty-five percent of any portion of the benefit
27  between $250,000 and $1 million; plus
28         3.  Twenty percent of any portion of the benefit
29  exceeding $1 million.
30         (2)  In assessing attorney's fees incurred in defeating
31  an order of taking, or for apportionment, or other
                                  9
CODING: Words stricken are deletions; words underlined are additions.
    Florida Senate - 1999                     CS for CS for SB 940
    309-1994-99
  1  supplemental proceedings, when not otherwise provided for, the
  2  court shall consider:
  3         (a)  The novelty, difficulty, and importance of the
  4  questions involved.
  5         (b)  The skill employed by the attorney in conducting
  6  the cause.
  7         (c)  The amount of money involved.
  8         (d)  The responsibility incurred and fulfilled by the
  9  attorney.
10         (e)  The attorney's time and labor reasonably required
11  adequately to represent the client in relation to the benefits
12  resulting to the client.
13         (f)  The fee, or rate of fee, customarily charged for
14  legal services of a comparable or similar nature.
15         (g)  Any attorney's fee award made under subsection
16  (1).
17         (3)  In determining the amount of attorney's fees to be
18  paid by the petitioner under subsection (2), the court shall
19  be guided by the fees the defendant would ordinarily be
20  expected to pay for these services if the petitioner were not
21  responsible for the payment of those fees.
22         (4)  At least 30 days prior to a hearing to assess
23  attorney's fees under subsection (2), the condemnee's attorney
24  shall submit to the condemning authority and to the court
25  complete time records and a detailed statement of services
26  rendered by date, nature of services performed, time spent
27  performing such services, and costs incurred.
28         (5)  The defendant shall provide to the court a copy of
29  any fee agreement that may exist between the defendant and his
30  or her attorney, and the court must reduce the amount of
31
                                  10
CODING: Words stricken are deletions; words underlined are additions.
    Florida Senate - 1999                     CS for CS for SB 940
    309-1994-99
  1  attorney's fees to be paid by the defendant by the amount of
  2  any attorney's fees awarded by the court.
  3         Section 3.  Subsection (1) of section 127.01, Florida
  4  Statutes, is amended to read:
  5         127.01  Counties delegated power of eminent domain;
  6  recreational purposes, issue of necessity of taking.--
  7         (1)(a)  Each county of the state is delegated authority
  8  to exercise the right and power of eminent domain; that is,
  9  the right to appropriate property, except state or federal,
10  for any county purpose.  The absolute fee simple title to all
11  property so taken and acquired shall vest in such county
12  unless the county seeks to condemn a particular right or
13  estate in such property.
14         (b)  Each county is further authorized to exercise the
15  eminent domain power powers granted to the Department of
16  Transportation by s. 337.27(1) and (2), the transportation
17  corridor protection provisions of s. 337.273, and the right of
18  entry onto property pursuant to s. 337.274.
19         Section 4.  Subsection (2) of section 166.401, Florida
20  Statutes, is amended to read:
21         166.401  Right of eminent domain.--
22         (2)  Each municipality is further authorized to
23  exercise the eminent domain power powers granted to the
24  Department of Transportation in s. 337.27(1) and (2) and the
25  transportation corridor protection provisions of s. 337.273.
26         Section 5.  Subsection (2) of section 337.27, Florida
27  Statutes, section 337.271, Florida Statutes, subsection (2) of
28  section 348.0008, Florida Statutes, subsection (2) of section
29  348.759, Florida Statutes, and subsection (2) of section
30  348.957, Florida Statutes, are repealed.
31
                                  11
CODING: Words stricken are deletions; words underlined are additions.
    Florida Senate - 1999                     CS for CS for SB 940
    309-1994-99
  1         Section 6.  Subsections (3), (4), and (5) are added to
  2  section 479.15, Florida Statutes, to read:
  3         479.15  Harmony of regulations.--
  4         (3)  It is the express intent of the Legislature to
  5  limit the state right-of-way acquisition costs on state and
  6  federal roads in eminent domain proceedings, the provisions of
  7  ss. 479.07 and 479.155 notwithstanding. Subject to approval by
  8  the Federal Highway Administration, whenever public
  9  acquisition of land upon which is situated a lawful
10  nonconforming sign occurs, as provided in this chapter, the
11  sign may, at the election of its owner and the department, be
12  relocated or reconstructed adjacent to the new right-of-way
13  along the roadway. The sign owner shall pay all costs
14  associated with relocating or reconstructing any sign under
15  this subsection, and neither the state nor any local
16  government shall reimburse the sign owner for such costs,
17  unless part of such relocation costs are required by federal
18  law.
19         (4)  Such relocation shall be adjacent to the current
20  site and the face of the sign shall not be increased in size
21  or height or structurally modified at the point of relocation
22  consistent with the current building codes of the jurisdiction
23  in which the sign is located.
24         (5)  In the event that relocation is inconsistent with
25  the ordinances of the municipality or county within whose
26  jurisdiction the sign is located, the ordinances of the local
27  government shall prevail, provided that the local government
28  shall assume the responsibility to provide the owner of the
29  sign just compensation for its removal. Further, the
30  provisions of this section shall not impair any agreement or
31  future agreements between a municipality or county and the
                                  12
CODING: Words stricken are deletions; words underlined are additions.
    Florida Senate - 1999                     CS for CS for SB 940
    309-1994-99
  1  owner of a sign or signs within the jurisdiction of the
  2  municipality or county. Nothing in this section shall be
  3  deemed to cause a nonconforming sign to become conforming
  4  solely as a result of the relocation allowed in this section.
  5         Section 7.  This act shall take effect January 1, 2000.
  6
  7          STATEMENT OF SUBSTANTIAL CHANGES CONTAINED IN
                       COMMITTEE SUBSTITUTE FOR
  8                            CS/SB 940
  9
10  Deletes the express preemption of local government ordinances
    for the relocation of non-conforming signs.  Provides that if
11  local government has an ordinance that prohibits relocation of
    signs, the local government has to compensate the owner for
12  the sign.
13  Provides a time period, from January 1, 2000, to July 1, 2000,
    for condemning authorities to phase in the presuit negotiation
14  provisions without being prohibited from filing an eminent
    domain action.
15
    Provides a time period, from January 1, 2000, to July 1, 2000,
16  for condemning authorities to phase in the presuit negotiation
    business damages provisions without being prohibited from
17  filing an eminent domain action.
18  Clarifies the methodology for determining attorney's fees
    under the presuit negotiation process.
19
    Clarifies when costs should be paid under the presuit
20  negotiation process.
21
22
23
24
25
26
27
28
29
30
31
                                  13