Florida Senate - 2022                              CS for SB 620
       
       
        
       By the Committee on Appropriations; and Senator Hutson
       
       
       
       
       
       576-02163-22                                           2022620c1
    1                        A bill to be entitled                      
    2         An act relating to local government; creating s.
    3         70.91, F.S.; defining the term “business records”;
    4         authorizing certain businesses to claim business
    5         damages from a county or municipality if the county or
    6         municipality enacts or amends certain ordinances or
    7         charter provisions; limiting the amount of business
    8         damages that may be recovered; specifying ordinances
    9         and charter provisions that do not result in liability
   10         for business damages; requiring businesses and
   11         counties or municipalities to follow certain presuit
   12         procedures before businesses file an action for
   13         business damages; authorizing businesses to recover
   14         costs and fees in a specified manner and if certain
   15         requirements are met; specifying that certain evidence
   16         relating to mediations and negotiations is
   17         inadmissible as evidence in certain proceedings;
   18         specifying that counties and municipalities are not
   19         liable for damages if they take certain actions within
   20         a specified timeframe; requiring courts to consider
   21         certain factors and follow specified guidance when
   22         assessing costs; defining the term “benefits”;
   23         specifying requirements for the courts in determining
   24         and awarding attorney fees; requiring attorneys and
   25         businesses to submit certain documentation relating to
   26         attorney fees; requiring businesses claiming the right
   27         to recover business damages to state the nature and
   28         extent of the damages; requiring a jury to determine
   29         whether a business is entitled to business damages and
   30         the amount of such damages unless the business elects
   31         to have the business damages determined by the court;
   32         providing applicability and construction; providing an
   33         effective date.
   34  
   35         WHEREAS, the Legislature recognizes that the continued
   36  economic growth and economic prosperity of this state are tied
   37  to the protection of private property rights and the stability
   38  of laws, ordinances, and charter provisions, and
   39         WHEREAS, the Legislature recognizes that the protection of
   40  private property rights and the stability of laws and local
   41  rules and regulations affecting business activities encourage
   42  investments by businesses in their real property, facilities,
   43  operations, and workforces, and
   44         WHEREAS, investments by businesses drive the economic
   45  growth of a community, and
   46         WHEREAS, the economic costs of local rules and regulations
   47  that are primarily for the benefit of a county or municipality
   48  as a whole should be borne by the county or municipality as a
   49  whole, and
   50         WHEREAS, the Legislature intends to require counties and
   51  municipalities to compensate businesses for business damages
   52  when an ordinance or a charter provision causes a business
   53  significant economic harm, NOW, THEREFORE,
   54  
   55  Be It Enacted by the Legislature of the State of Florida:
   56  
   57         Section 1. Section 70.91, Florida Statutes, is created to
   58  read:
   59         70.91 Compensation for business damages caused by county or
   60  municipal ordinances or charter provisions.—
   61         (1) DEFINITION.—For purposes of this section, the term
   62  “business records” includes, but is not limited to, copies of
   63  federal income tax returns, federal income tax withholding
   64  statements, federal miscellaneous income tax statements, state
   65  sales tax returns, balance sheets, profit and loss statements,
   66  state corporate income tax returns for the 3 years preceding the
   67  enactment of or amendment to an ordinance or a charter, and
   68  other records relied upon by a business to substantiate a claim
   69  for business damages.
   70         (2) CLAIMS FOR BUSINESS DAMAGES.—
   71         (a) Except as provided in paragraph (c), a business may
   72  claim business damages from a county or municipality if:
   73         1. The county or municipality enacts or amends an ordinance
   74  or a charter that has or will cause a reduction of at least 15
   75  percent of the business’ profit as applied on a per location
   76  basis of a business operated within the jurisdiction; and
   77         2. The business has engaged in lawful business in this
   78  state for the 3 years preceding the enactment of or amendment to
   79  the ordinance or charter.
   80         (b)The amount of business damages may be established by
   81  any reasonable method, but the amount of business damages that
   82  may be recovered by a business may not exceed:
   83         1.The present value of 7 years’ lost profits; or
   84         2.An amount equal to the business’ gross receipts for the
   85  60 months preceding the date of enactment of or amendment to the
   86  ordinance or charter provision. This subparagraph applies if the
   87  ordinance or charter will cause a total loss of profit.
   88         (c) A county or municipality is not liable for business
   89  damages caused by:
   90         1. An ordinance or a charter provision that is required to
   91  comply with state or federal law;
   92         2. Emergency ordinances, declarations, or orders adopted by
   93  a county or municipality under ss. 252.31-252.60, the State
   94  Emergency Management Act;
   95         3. A temporary emergency ordinance enacted pursuant to s.
   96  125.66 or s. 166.041 which remains in effect for no more than 90
   97  days;
   98         4. An ordinance or charter provision enacted to implement:
   99         a. Part II of chapter 163, relating to growth policy,
  100  county and municipal planning, and land development regulation;
  101         b. Section 553.73, relating to the Florida Building Code;
  102  or
  103         c. Section 633.202, relating to the Florida Fire Prevention
  104  Code;
  105         5. An ordinance or charter provision required to implement
  106  a contract or agreement, including, but not limited to, any
  107  federal, state, local, or private grant, or other financial
  108  assistance accepted by a county or municipal government;
  109         6. An ordinance or charter provision relating to the
  110  issuance or refinancing of debt; or
  111         7. An ordinance or charter provision relating to the
  112  adoption of a budget or budget amendment.
  113         (3) PRESUIT PROCEDURES.—
  114         (a) At least 180 days before a business files an action
  115  under this section against a county or municipality and within
  116  180 days after the effective date of the relevant ordinance or
  117  charter provision, the business must present a written offer to
  118  settle the business’ claim for business damages to the head of
  119  the county or municipality enacting or amending the ordinance.
  120  The settlement offer must be made in good faith and include an
  121  explanation of the nature, extent, and monetary amount of
  122  damages and must be prepared by the owner, a certified public
  123  accountant, or a business damage expert familiar with the nature
  124  of the operations of the business. The business must also
  125  provide copies of the business’ records that substantiate the
  126  offer to settle the business damage claim. If additional
  127  information is needed beyond the data that may be obtained from
  128  business records existing at the time of the offer, the business
  129  and county or municipality may agree on a schedule for the
  130  submission of that information.
  131         (b) Within 120 days after receipt of the good faith
  132  business damage offer and accompanying business records, the
  133  county or municipality must, by certified mail, accept or reject
  134  the business’ offer or make a counteroffer. Failure of the
  135  county or municipality to respond to or reject the business
  136  damage offer must be deemed to be a counteroffer of zero dollars
  137  for purposes of calculating attorney fees under subsection (6)
  138  solely based upon the benefits achieved for the business.
  139         (c) If the business and the county or municipality reach a
  140  settlement before a lawsuit is filed, the business that settles
  141  the claim for business damages in lieu of litigation is entitled
  142  to recover costs in the same manner as provided in subsection
  143  (5) and attorney fees in the same manner as provided in
  144  subsection (6), more specifically as follows:
  145         1. If the business recovers business damages based upon the
  146  county or municipality accepting the business’ initial offer or
  147  the business accepting the county’s or municipality’s initial
  148  counteroffer, attorney fees must be calculated in accordance
  149  with paragraphs (6)(c)-(f) for the attorney’s time required to
  150  present the business’ good faith offer. Otherwise, attorney fees
  151  for the award of business damages must be calculated as provided
  152  in paragraphs (6)(a) and (b), based upon the difference between
  153  the final judgment or settlement of business damages and the
  154  county’s or municipality’s counteroffer to the business owner’s
  155  offer.
  156         2.Presuit costs must be presented, calculated, and awarded
  157  in the same manner as provided in subsection (5), after the
  158  business owner submits to the county or municipality all
  159  business damage reports or other work products for which
  160  recovery is sought and upon the county or municipality paying
  161  any amounts due for business damages or upon final judgment.
  162         3. If the parties cannot agree on the amount of costs and
  163  attorney fees to be paid by the county or municipality, the
  164  business owner may file a complaint in the circuit court in the
  165  county in which the business is located to recover attorney fees
  166  and costs. If a business files a complaint for business damages,
  167  it must be filed within 1 year after the effective date of the
  168  relevant ordinance, ordinance amendment, or charter provision.
  169         (d) Evidence of negotiations or of any written or oral
  170  statements used in mediation or negotiations between the parties
  171  under this section is inadmissible in any proceeding for
  172  business damages, except in a proceeding to determine reasonable
  173  costs and attorney fees.
  174         (4)OPPORTUNITY TO CURE.—There is no liability under this
  175  section for a county or municipality that, within the 120-day
  176  timeframe provided for in subsection (3)(b):
  177         (a) Repeals the ordinance or charter provision that gave
  178  rise to the business’ claim;
  179         (b) Amends the ordinance or charter provision that gave
  180  rise to the business’ claim in a manner that returns the
  181  ordinance or charter provision to its form in existence before
  182  the business’ claim arose; or
  183         (c) Publishes notice of its intent to repeal or amend the
  184  ordinance that gave rise to the business’ claim and, within 30
  185  days after publication of the notice, amends the ordinance in a
  186  manner that returns the ordinance to its form in existence
  187  before the business’ claim arose or repeals the ordinance.
  188         (5)COSTS.—
  189         (a) If a business recovers business damages, the county or
  190  municipality must pay the business’ reasonable costs, including
  191  a reasonable accountant’s fee. Prejudgment interest may not be
  192  paid on costs or attorney fees.
  193         (b) At least 30 days before a hearing to assess costs under
  194  this subsection, the attorney for the business shall submit to
  195  the county or municipality for each expert witness the expert
  196  witness complete time records and a detailed statement of
  197  services rendered by date, nature of services performed, time
  198  spent performing the services, and costs incurred and a copy of
  199  any fee agreement that may exist between the expert witness and
  200  the business or the business’ attorney.
  201         (c) In assessing costs, the court shall consider all
  202  factors relevant to the reasonableness of the costs, including,
  203  but not limited to, the fees paid to similar experts retained in
  204  the case by the county or municipality or other parties and the
  205  reasonable costs of similar services by similarly qualified
  206  persons.
  207         (d) In assessing costs to be paid by the county or
  208  municipality, the court shall be guided by the amount the
  209  business would ordinarily have been expected to pay for the
  210  services rendered if the county or municipality was not
  211  responsible for the costs.
  212         (e) The court shall make specific findings that justify
  213  each sum awarded as an expert witness fee.
  214         (6) ATTORNEY FEES.—
  215         (a) As used in this subsection, the term “benefits” means
  216  the difference, exclusive of interest, between the final
  217  judgment or settlement and the last written offer made by the
  218  county or municipality before the business hires an attorney. If
  219  the county or municipality does not make a written settlement
  220  offer before the business hires an attorney, benefits must be
  221  measured from the first written offer after the attorney is
  222  hired.
  223         (b)1. In determining attorney fees, if business records
  224  kept by the owner in the ordinary course of business were
  225  provided to the county or municipality to substantiate the
  226  business damage offer made by the business, benefits for amounts
  227  awarded for business damages must be based upon the difference
  228  between the final judgment or settlement and the written
  229  counteroffer made by the county or municipality.
  230         2. In determining attorney fees, if existing business
  231  records kept by the owner in the ordinary course of business
  232  were not provided to the county or municipality to substantiate
  233  the business damage offer made by the business and those records
  234  that were not provided are later deemed material to the
  235  determination of business damages, benefits for amounts awarded
  236  for business damages must be based upon the difference between
  237  the final judgment or settlement and the first written
  238  counteroffer made by the county or municipality within 90 days
  239  after the receipt of the business records previously not
  240  provided to the county or municipality.
  241         3. The court may also consider nonmonetary benefits
  242  obtained for the business through the efforts of the attorney,
  243  to the extent such nonmonetary benefits are specifically
  244  identified by the court and can, within a reasonable degree of
  245  certainty, be quantified.
  246         4.Attorney fees based upon benefits achieved shall be
  247  awarded in accordance with the following schedule:
  248         a. Thirty-three percent of any benefit up to $250,000; plus
  249         b. Twenty-five percent of any portion of the benefit
  250  between $250,000 and $1 million; plus
  251         c. Twenty percent of any portion of the benefit exceeding
  252  $1 million.
  253         (c) In assessing attorney fees in a claim for business
  254  damages, when not otherwise provided for, the court shall
  255  consider:
  256         1. The novelty, difficulty, and importance of the questions
  257  involved.
  258         2. The skill employed by the attorney in conducting the
  259  case.
  260         3. The amount of money involved.
  261         4. The responsibility incurred and fulfilled by the
  262  attorney.
  263         5. The attorney’s time and labor reasonably required to
  264  adequately represent the client in relation to the benefits
  265  resulting to the client.
  266         6. The fee, or rate of fee, customarily charged for legal
  267  services of a comparable or similar nature.
  268         (d) In determining the amount of attorney fees to be paid
  269  by the county or municipality under paragraph (c), the court
  270  shall be guided by the fees the business would ordinarily be
  271  expected to pay for these services if the county or municipality
  272  was not responsible for the payment of those fees.
  273         (e) At least 30 days before a hearing to assess attorney
  274  fees under paragraph (c), the attorney for the business shall
  275  submit to the county or municipality and to the court complete
  276  time records and a detailed statement of services rendered by
  277  date, nature of services performed, time spent performing the
  278  services, and costs incurred.
  279         (f) The business shall provide to the court a copy of any
  280  fee agreement that may exist between the business and its
  281  attorney, and the court must reduce the amount of attorney fees
  282  to be paid by the business by the amount of any attorney fees
  283  awarded by the court.
  284         (7) TRIAL.—A business claiming the right to recover
  285  business damages must state in its complaint the nature and
  286  extent of those damages. At trial, a jury shall determine
  287  whether a business is entitled to business damages and the
  288  amount of damages, if any. However, the business may elect to
  289  have business damages determined by the court.
  290         (8) APPLICATION; CONSTRUCTION.—This section does not apply
  291  to a business that may claim business damages under chapter 73
  292  and may not be construed to authorize double recoveries.
  293         Section 2. This act applies to county and municipal
  294  ordinances or charter provisions enacted or amended on or after
  295  the effective date of this act.
  296         Section 3. This act shall take effect upon becoming a law.