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





                                                  SENATE AMENDMENT

    Bill No. CS for SB 1314

    Amendment No.    

                            CHAMBER ACTION
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10                                                                

11  Senator Carlton moved the following amendment:

12

13         Senate Amendment (with title amendment) 

14         On page 51, line 31, delete that line

15

16  and insert:

17         Section 57.  Effective January 1, 2000, section 73.015,

18  Florida Statutes, is created to read:

19         73.015  Presuit negotiation.--

20         (1)  Effective July 1, 2000, before an eminent domain

21  proceeding is brought under this chapter or chapter 74, the

22  condemning authority must attempt to negotiate in good faith

23  with the fee owner of the parcel to be acquired, must provide

24  the fee owner with a written offer and, if requested, a copy

25  of the appraisal upon which the offer is based, and must

26  attempt to reach an agreement regarding the amount of

27  compensation to be paid for the parcel.

28         (a)  At the inception of negotiation for acquisition,

29  the condemning authority must notify the fee owner of the

30  following:

31         1.  That all or a portion of his or her property is

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                                                  SENATE AMENDMENT

    Bill No. CS for SB 1314

    Amendment No.    





 1  necessary for a project;

 2         2.  The nature of the project for which the parcel is

 3  considered necessary, and the parcel designation of the

 4  property to be acquired;

 5         3.  That, within 15 business days after receipt of a

 6  request by the fee owner, the condemning authority will

 7  provide a copy of the appraisal report upon which the offer to

 8  the fee owner is based; copies, to the extent prepared, of the

 9  right-of-way maps or other documents that depict the proposed

10  taking; and copies, to the extent prepared, of the

11  construction plans that depict project improvements to be

12  constructed on the property taken and improvements to be

13  constructed adjacent to the remaining property including, but

14  not limited to, plan, profile, cross-section, drainage, and

15  pavement marking sheets and driveway connection detail; and

16  that the condemning authority shall provide any additional

17  plan sheets within 15 days of the request;

18         4.  The fee owner's statutory rights under ss. 73.091

19  and 73.092; and

20         5.  The fee owner's rights and responsibilities under

21  paragraphs (b) and (c) and subsection (4).

22         (b)  The condemning authority must provide a written

23  offer of compensation to the fee owner as to the value of the

24  property sought to be appropriated and, where less than the

25  entire property is sought to be appropriated, any damages to

26  the remainder caused by the taking. The owner must be given at

27  least 30 days after either receipt of the notice or the date

28  the notice is returned as undeliverable by the postal

29  authorities to respond to the offer, before the condemning

30  authority files a condemnation proceeding for the parcel

31  identified in the offer.

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                                                  SENATE AMENDMENT

    Bill No. CS for SB 1314

    Amendment No.    





 1         (c)  The notice and written offer must be sent by

 2  certified mail, return receipt requested, to the fee owner's

 3  last known address listed on the county ad valorem tax roll.

 4  Alternatively, the notice and written offer may be personally

 5  delivered to the fee owner of the property. If there is more

 6  than one owner of a property, notice to one owner constitutes

 7  notice to all owners of the property. The return of the notice

 8  as undeliverable by the postal authorities constitutes

 9  compliance with this provision. The condemning authority is

10  not required to give notice or a written offer to a person who

11  acquires title to the property after the notice required by

12  this section has been given.

13         (d)  Notwithstanding this subsection, with respect to

14  lands acquired under s. 259.041, the condemning authority is

15  not required to give the fee owner the current appraisal

16  before executing an option contract.

17         (2)  Effective July 1, 2000, before an eminent domain

18  proceeding is brought under this chapter or chapter 74 by the

19  Department of Transportation or by a county, municipality,

20  board, district, or other public body for the condemnation of

21  right-of-way, the condemning authority must make a good faith

22  effort to notify the property owners, including lessees, who

23  operate a business located on the property to be acquired.

24         (a)  The condemning authority must notify the business

25  owner of the following:

26         1.  That all or a portion of his or her property is

27  necessary for a project;

28         2.  The nature of the project for which the parcel is

29  considered necessary, and the parcel designation of the

30  property to be acquired;

31         3.  That, within 15 business days after receipt of a

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                                                  SENATE AMENDMENT

    Bill No. CS for SB 1314

    Amendment No.    





 1  request by the business owner, the condemning authority will

 2  provide a copy of the appraisal report upon which the offer to

 3  the fee owner is based; copies, to the extent prepared, of the

 4  right-of-way maps or other documents that depict the proposed

 5  taking; and copies, to the extent prepared, of the

 6  construction plans that depict project improvements to be

 7  constructed on the property taken and improvements to be

 8  constructed adjacent to the remaining property including, but

 9  not limited to, plan, profile, cross-section, drainage,

10  pavement marking sheets, and driveway connection detail; and

11  that the condemning authority shall provide any additional

12  plan sheets within 15 days of request;

13         4.  The business owner's statutory rights under s.

14  73.071, s. 73.091, and s. 73.092; and

15         5.  The business owner's rights and responsibilities

16  under paragraphs (b) and (c) and subsection (4).

17         (b)  The notice must be made subsequent to or

18  concurrent with the condemning authority's making the written

19  offer of compensation to the fee owner pursuant to subsection

20  (1). The notice must be sent by certified mail, return receipt

21  requested, to the address of the registered agent for the

22  business located on the property to be acquired, or if no

23  agent is registered, by certified mail or personal delivery to

24  the address of the business located on the property to be

25  acquired. Notice to one owner of a multiple ownership business

26  constitutes notice to all business owners of that business.

27  The return of the notice as undeliverable by the postal

28  authorities constitutes compliance with these provisions. The

29  condemning authority is not required to give notice to a

30  person who acquires an interest in the business after the

31  notice required by this section has been given. Once notice

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                                                  SENATE AMENDMENT

    Bill No. CS for SB 1314

    Amendment No.    





 1  has been made to business owners under this subsection, the

 2  condemning authority may file a condemnation proceeding

 3  pursuant to chapter 73 or chapter 74 for the property

 4  identified in the notice.

 5         (c)  If the business qualifies for business damages

 6  pursuant to s. 73.071(3)(b) and the business intends to claim

 7  business damages, the business owner must, within 180 days

 8  after either receipt of the notice or the date the notice is

 9  returned as undeliverable by the postal authorities, or at a

10  later time mutually agreed to by the condemning authority and

11  the business owner, submit to the condemning authority a

12  good-faith written offer to settle any claims of business

13  damage. The written offer must be sent to the condemning

14  authority by certified mail, return receipt requested. Absent

15  a showing of a good-faith justification for the failure to

16  submit a business-damage offer within 180 days, the court must

17  strike the business owner's claim for business damages in any

18  condemnation proceeding. If the court finds that the business

19  owner has made a showing of a good-faith justification for the

20  failure to timely submit a business damage offer, the court

21  shall grant the business owner up to 180 days within which to

22  submit a business-damage offer, which the condemning authority

23  must respond to within 120 days.

24         1.  The business-damage offer must include an

25  explanation of the nature, extent, and monetary amount of such

26  damage and must be prepared by the owner, a certified public

27  accountant, or a business damage expert familiar with the

28  nature of the operations of the owner's business. The business

29  owner shall also provide to the condemning authority copies of

30  the owner's business records that substantiate the good-faith

31  offer to settle the business damage claim. If additional

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                                                  SENATE AMENDMENT

    Bill No. CS for SB 1314

    Amendment No.    





 1  information is needed beyond data that may be obtained from

 2  business records existing at the time of the offer, the

 3  business owner and condemning authority may agree on a

 4  schedule for the submission of such information.

 5         2.  As used in this paragraph, the term "business

 6  records" includes, but is not limited to, copies of federal

 7  income tax returns, federal income tax withholding statements,

 8  federal miscellaneous income tax statements, state sales tax

 9  returns, balance sheets, profit and loss statements, and state

10  corporate income tax returns for the 5 years preceding

11  notification which are attributable to the business operation

12  on the property to be acquired, and other records relied upon

13  by the business owner that substantiate the business-damage

14  claim.

15         (d)  Within 120 days after receipt of the good-faith

16  business-damage offer and accompanying business records, the

17  condemning authority must, by certified mail, accept or reject

18  the business owner's offer or make a counteroffer. Failure of

19  the condemning authority to respond to the business damage

20  offer, or rejection thereof pursuant to this section, must be

21  deemed to be a counteroffer of zero dollars for purposes of

22  subsequent application of s. 73.092(1).

23         (3)  At any time in the presuit negotiation process,

24  the parties may agree to submit the compensation or

25  business-damage claims to nonbinding mediation. The parties

26  shall agree upon a mediator certified under s. 44.102. In the

27  event that there is a settlement reached as a result of

28  mediation or other mutually acceptable dispute resolution

29  procedure, the agreement reached shall be in writing. The

30  written agreement provided for in this section shall

31  incorporate by reference the right-of-way maps, construction

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                                                  SENATE AMENDMENT

    Bill No. CS for SB 1314

    Amendment No.    





 1  plans, or other documents related to the taking upon which the

 2  settlement is based. In the event of a settlement, both

 3  parties shall have the same legal rights that would have been

 4  available under law if the matter had been resolved through

 5  eminent domain proceedings in circuit court with the maps,

 6  plans, or other documents having been made a part of the

 7  record.

 8         (4)  If a settlement is reached between the condemning

 9  authority and a property or business owner prior to a lawsuit

10  being filed, the property or business owner who settles

11  compensation claims in lieu of condemnation shall be entitled

12  to recover costs in the same manner as provided in s. 73.091

13  and attorney's fees in the same manner as provided in s.

14  73.091, more specifically as follows:

15         (a)  Attorney's fees for presuit negotiations under

16  this section regarding the amount of compensation to be paid

17  for the land, severance damages, and improvements must be

18  calculated in accordance with s. 73.092(1) unless the parties

19  otherwise agree.

20         (b)  If business damages are recovered by the business

21  owner based on the condemning authority accepting the business

22  owner's initial offer or the business owner accepting the

23  condemning authority's initial counteroffer, attorney's fees

24  must be calculated in accordance with s. 73.092(2), (3), (4),

25  and (5) for the attorney's time incurred in presentation of

26  the business owner's good-faith offer under paragraph (2)(c).

27  Otherwise, attorney's fees for the award of business damages

28  must be calculated as provided in s. 73.092(1), based on the

29  difference between the final judgment or settlement of

30  business damages and the counteroffer to the business owner's

31  offer by the condemning authority.

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                                                  SENATE AMENDMENT

    Bill No. CS for SB 1314

    Amendment No.    





 1         (c)  Presuit costs must be presented, calculated, and

 2  awarded in the same manner as provided in s. 73.091, after

 3  submission by the business or property owner to the condemning

 4  authority of all appraisal reports, business damage reports,

 5  or other work-products for which recovery is sought, and upon

 6  transfer of title of the real property by closing, upon

 7  payment of any amounts due for business damages, or upon final

 8  judgment.

 9         (d)  If the parties cannot agree on the amount of costs

10  and attorney's fees to be paid by the condemning authority,

11  the business or property owner may file a complaint in the

12  circuit court in the county in which the property is located

13  to recover attorney's fees and costs.

14         (5)  Evidence of negotiations, or of any written or

15  oral statements used in mediation or negotiations between the

16  parties under this section is inadmissible in any condemnation

17  proceeding, except in a proceeding to determine reasonable

18  costs and attorney's fees.

19         Section 58.  Effective January 1, 2000, subsection (3)

20  of section 73.071, Florida Statutes, is amended to read:

21         73.071  Jury trial; compensation; severance damages;

22  business damages.--

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

24  compensation to be paid, which compensation shall include:

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

26  appropriated;

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

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

29  taking, including, when the action is by the Department of

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

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

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                                                  SENATE AMENDMENT

    Bill No. CS for SB 1314

    Amendment No.    





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

 2  destroy an established business of more than 4 5 years'

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

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

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

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

 7  claiming the right to recover such special damages shall set

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

 9  such damages; and

10         (c)  Where the appropriation is of property upon which

11  a mobile home, other than a travel trailer as defined in s.

12  320.01, is located, whether or not the owner of the mobile

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

14  effect of the taking of the property involved requires the

15  relocation of such mobile home, the reasonable removal or

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

17  exceed the replacement value of such mobile home.  The

18  compensation paid to a mobile home owner under this paragraph

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

20  expenses of removal or relocation.  Any mobile home owner

21  claiming the right to such removal or relocation expenses

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

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

24  any governmental authority exercising its power of eminent

25  domain when reasonable removal or relocation expenses must be

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

27  agency rule applicable to such exercise of power.

28         Section 59.  The amendments to subsection (3) of

29  section 73.071, Florida Statutes, as contained in this act

30  shall stand repealed effective January 1, 2003.

31         Section 60.  Effective January 1, 2000, subsection (1)

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                                                  SENATE AMENDMENT

    Bill No. CS for SB 1314

    Amendment No.    





 1  of section 73.091, Florida Statutes, is amended to read:

 2         73.091  Costs of the proceedings.--

 3         (1)  The petitioner shall pay attorney's fees as

 4  provided in s. 73.092 as well as all reasonable costs incurred

 5  in the defense of the proceedings in the circuit court,

 6  including, but not limited to, reasonable appraisal fees and,

 7  when business damages are compensable, a reasonable

 8  accountant's fee, to be assessed by that court. No prejudgment

 9  interest shall be paid on costs or attorney's fees.

10         Section 61.  Effective January 1, 2000, subsection (1)

11  of section 73.092, Florida Statutes, is amended to read:

12         73.092  Attorney's fees.--

13         (1)  Except as otherwise provided in this section and

14  s. 73.015, the court, in eminent domain proceedings, shall

15  award attorney's fees based solely on the benefits achieved

16  for the client.

17         (a)  As used in this section, the term "benefits" means

18  the difference, exclusive of interest, between the final

19  judgment or settlement and the last written offer made by the

20  condemning authority before the defendant hires an attorney.

21  If no written offer is made by the condemning authority before

22  the defendant hires an attorney, benefits must be measured

23  from the first written offer after the attorney is hired.

24         1.  In determining attorney's fees, if business records

25  as defined in s. 73.015(2)(c)2. and kept by the owner in the

26  ordinary course of business were provided to the condemning

27  authority to substantiate the business damage offer in s.

28  73.015(2)(c), benefits for amounts awarded for business

29  damages must be based on the difference between the final

30  judgment or settlement and the written counteroffer made by

31  the condemning authority provided in s. 73.015(2)(d). In

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                                                  SENATE AMENDMENT

    Bill No. CS for SB 1314

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 1  determining attorney's fees in prelitigation negotiations,

 2  benefits do not include amounts awarded for business damages

 3  unless the business owner provided to the condemning

 4  authority, upon written request, prior to litigation, those

 5  financial and business records kept by the owner in the

 6  ordinary course of business.

 7         2.  In determing attorney's fees, if existing business

 8  records as defined in s. 73.015(2)(c)2. and kept by the owner

 9  in the ordinary course of business were not provided to the

10  condemning authority to substantiate the business damage offer

11  in s. 73.015(2)(c), and those records that were not provided

12  are later deemed material to the determination of business

13  damages, benefits for amounts awarded for business damages

14  must be based upon the difference between the final judgment

15  or settlement and the first written counteroffer made by the

16  condemning authority within 90 days from the condemning

17  authority's receipt of the business records previously not

18  provided. In determining attorney's fees subsequent to the

19  filing of litigation, if financial and business records kept

20  by the owner in the ordinary course of business were not

21  provided to the condemning authority prior to litigation,

22  benefits for amounts awarded for business damages must be

23  based on the first written offer made by the condemning

24  authority within 120 days after the filing of the eminent

25  domain action. In the event the petitioner makes a discovery

26  request for a defendant's financial and business records kept

27  in the ordinary course of business within 45 days after the

28  filing of that defendant's answer, then the 120-day period

29  shall be extended to 60 days after receipt by petitioner of

30  those records. If the condemning authority makes no written

31  offer to the defendant for business damages within the time

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                                                  SENATE AMENDMENT

    Bill No. CS for SB 1314

    Amendment No.    





 1  period provided in this section, benefits for amounts awarded

 2  for business damages must be based on the difference between

 3  the final judgment or settlement and the last written offer

 4  made by the condemning authority before the defendant hired an

 5  attorney.

 6         (b)  The court may also consider nonmonetary benefits

 7  obtained for the client through the efforts of the attorney,

 8  to the extent such nonmonetary benefits are specifically

 9  identified by the court and can, within a reasonable degree of

10  certainty, be quantified.

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

12  be awarded in accordance with the following schedule:

13         1.  Thirty-three percent of any benefit up to $250,000;

14  plus

15         2.  Twenty-five percent of any portion of the benefit

16  between $250,000 and $1 million; plus

17         3.  Twenty percent of any portion of the benefit

18  exceeding $1 million.

19         Section 62.  Effective January 1, 2000, subsection (1)

20  of section 127.01, Florida Statutes, is amended to read:

21         127.01  Counties delegated power of eminent domain;

22  recreational purposes, issue of necessity of taking.--

23         (1)(a)  Each county of the state is delegated authority

24  to exercise the right and power of eminent domain; that is,

25  the right to appropriate property, except state or federal,

26  for any county purpose.  The absolute fee simple title to all

27  property so taken and acquired shall vest in such county

28  unless the county seeks to condemn a particular right or

29  estate in such property.

30         (b)  Each county is further authorized to exercise the

31  eminent domain power powers granted to the Department of

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 1  Transportation by s. 337.27(1) and (2), the transportation

 2  corridor protection provisions of s. 337.273, and the right of

 3  entry onto property pursuant to s. 337.274.

 4         Section 63.  Effective January 1, 2000, subsection (2)

 5  of section 166.401, Florida Statutes, is amended to read:

 6         166.401  Right of eminent domain.--

 7         (2)  Each municipality is further authorized to

 8  exercise the eminent domain power powers granted to the

 9  Department of Transportation in s. 337.27(1) and (2) and the

10  transportation corridor protection provisions of s. 337.273.

11         Section 64.  Effective January 1, 2000, subsection (2)

12  of section 337.27, Florida Statutes, section 337.271, Florida

13  Statutes, subsection (2) of section 348.0008, Florida

14  Statutes, subsection (2) of section 348.759, Florida Statutes,

15  and subsection (2) of section 348.957, Florida Statutes, are

16  repealed.

17         Section 65.  Effective January 1, 2000, subsections

18  (3), (4), and (5) are added to section 479.15, Florida

19  Statutes, to read:

20         479.15  Harmony of regulations.--

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

22  limit the state right-of-way acquisition costs on state and

23  federal roads in eminent domain proceedings, the provisions of

24  ss. 479.07 and 479.155 notwithstanding. Subject to approval by

25  the Federal Highway Administration, whenever public

26  acquisition of land upon which is situated a lawful

27  nonconforming sign occurs, as provided in this chapter, the

28  sign may, at the election of its owner and the department, be

29  relocated or reconstructed adjacent to the new right-of-way

30  along the roadway within 100 feet of the current location,

31  provided the nonconforming sign is not relocated on a parcel

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                                                  SENATE AMENDMENT

    Bill No. CS for SB 1314

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 1  zoned residential, and provided further that such relocation

 2  shall be subject to applicable setback requirements. The sign

 3  owner shall pay all costs associated with relocating or

 4  reconstructing any sign under this subsection, and neither the

 5  state nor any local government shall reimburse the sign owner

 6  for such costs, unless part of such relocation costs are

 7  required by federal law. If no adjacent property is available

 8  for the relocation, the department shall be responsible for

 9  paying the owner of the sign just compensation for its

10  removal.

11         (4)  Such relocation shall be adjacent to the current

12  site and the face of the sign shall not be increased in size

13  or height or structurally modified at the point of relocation

14  in a manner inconsistent with the current building codes of

15  the jurisdiction in which the sign is located. No permit shall

16  be issued for the removal, cutting or trimming of existing

17  trees or vegetation to make visible or ensure future

18  visibility of any such existing relocated sign that is

19  inconsistent with s. 479.106.

20         (5)  In the event that relocation can be accomplished

21  but is inconsistent with the ordinances of the municipality or

22  county within whose jurisdiction the sign is located, the

23  ordinances of the local government shall prevail, provided

24  that the local government shall assume the responsibility to

25  provide the owner of the sign just compensation for its

26  removal, but in no event shall compensation paid by the local

27  government exceed the compensation required under state or

28  federal law. Further, the provisions of this section shall not

29  impair any agreement or future agreements between a

30  municipality or county and the owner of a sign or signs within

31  the jurisdiction of the municipality or county. Nothing in

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                                                  SENATE AMENDMENT

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    Amendment No.    





 1  this section shall be deemed to cause a nonconforming sign to

 2  become conforming solely as a result of the relocation allowed

 3  in this section.

 4         Section 66.  Except as otherwise provided in this act,

 5  this act shall take effect July 1, 1999.

 6

 7

 8  ================ T I T L E   A M E N D M E N T ===============

 9  And the title is amended as follows:

10         On page 2, line 5, delete that line

11

12  and insert:

13                      A bill to be entitled

14         An act relating to eminent domain; creating s.

15         73.015, F.S.; requiring presuit negotiation

16         before an action in eminent domain may be

17         initiated under ch. 73, F.S., or ch. 74, F.S.;

18         providing requirements for the condemning

19         authority; requiring the condemning authority

20         to give specified notices; requiring a written

21         offer of purchase and appraisal and specifying

22         the time period during which the owner may

23         respond to the offer before a condemnation

24         lawsuit may be filed; providing procedures;

25         allowing a business owner to claim business

26         damage within a specified time period;

27         providing circumstances under which the court

28         must strike a business-damage defense;

29         providing procedures for business-damage

30         claims; providing for nonbinding mediation;

31         requiring the condemning authority to pay

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                                                  SENATE AMENDMENT

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    Amendment No.    





 1         reasonable costs and attorney's fees of a

 2         property owner; allowing the property owner to

 3         file a complaint in circuit court to recover

 4         attorney's fees and costs, if the parties

 5         cannot agree on the amount; providing that

 6         certain evidence is inadmissible in specified

 7         proceedings; amending s. 73.071, F.S.;

 8         modifying eligibility requirements for business

 9         owners to claim business damages; providing for

10         future repeal; amending s. 73.091, F.S.;

11         providing that no prejudgment interest shall be

12         paid on costs or attorney's fees in eminent

13         domain; amending s. 73.092, F.S.; amending

14         provisions relating to attorney's fees for

15         business-damage claims; amending ss. 127.01,

16         166.401, F.S.; restricting the exercise by

17         counties and municipalities of specified

18         eminent domain powers granted to the Department

19         of Transportation; repealing ss. 337.27(2),

20         337.271, 348.0008(2), 348.759(2), 348.957(2),

21         F.S., relating to limiting the acquisition cost

22         of lands and property acquired through eminent

23         domain proceedings by the Department of

24         Transportation, the Orlando-Orange County

25         Expressway Authority, or the Seminole County

26         Expressway Authority, or under the Florida

27         Expressway Authority Act, and relating to the

28         notice that the Department of Transportation

29         must give to a fee owner at the inception of

30         negotiations to acquire land; amending s.

31         479.15, F.S.; prescribing duties of local

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                                                  SENATE AMENDMENT

    Bill No. CS for SB 1314

    Amendment No.    





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 2         effective dates.

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