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
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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
1
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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
2
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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
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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
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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
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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
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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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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.
31
33