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 owner with a written offer and, if requested, a copy of

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

26  to reach an agreement regarding the amount of compensation to

27  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 owner, the condemning authority will provide

 7  right-of-way maps, construction plans, or other documents that

 8  depict the proposed taking, and a copy of the appraisal report

 9  upon which the offer is based;

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

11  and 73.092; and

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

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

14         (b)  The condemning authority must provide a written

15  offer of purchase to the fee owner. The owner must be given at

16  least 30 days to respond to the offer before the condemning

17  authority files a condemnation proceeding for the parcel

18  identified in the offer.

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

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

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

22  Alternatively, the notice and written offer may be personally

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

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

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

26  as undeliverable by the postal authorities constitutes

27  compliance with this provision. The condemning authority is

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

29  acquires title to the property after the notice required by

30  this section has been given.

31         (d)  Notwithstanding this subsection, with respect to

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                                                  SENATE AMENDMENT

    Bill No. CS for SB 1314

    Amendment No.    





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

 2  not required to give the fee owner the current appraisal

 3  before executing an option contract.

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

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

 6  Department of Transportation or by a county, municipality,

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

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

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

10  operate a business located on the property to be acquired of

11  their statutory rights under s. 73.091 and of the items listed

12  in subparagraphs (1)(a)1.-3. The notice must be sent by

13  certified mail, return receipt requested, or by personal

14  delivery to any person or employee operating the business. If

15  a business does not appear to be open and operating at the

16  time notice is attempted, and efforts to notify the owner by

17  certified mail and personal delivery have failed, the notice

18  must be published in a newspaper at least once each week for

19  two consecutive weeks in the county where the property is

20  located. However, if the property is located in a municipality

21  and a newspaper is published there, the notice must be

22  published in such a newspaper. Notice to one owner of a

23  multiple ownership business constitutes notice to all business

24  owners of that business. The condemning authority is not

25  required to give notice to a business owner who acquires an

26  interest in the business after the notice required by this

27  section has been given. Once notice has been made to business

28  owners under this subsection, the condemning authority may

29  file a condemnation proceeding pursuant to chapter 73 or

30  chapter 74 for the property identified in the notice.

31         (a)  If the business owner intends to claim business

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                                                  SENATE AMENDMENT

    Bill No. CS for SB 1314

    Amendment No.    





 1  damages under s. 73.071(3)(b), the business owner must, within

 2  120 days after either receipt of the notice or the date of

 3  final publication of notice as required by this subsection, or

 4  at a later time mutually agreed to by the condemning authority

 5  and the business owner, submit to the condemning authority a

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

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

 8  authority by certified mail, return receipt requested. Absent

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

10  submit a business-damage offer within 120 days, the court must

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

12  condemnation proceeding. If the court finds that the business

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

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

15  shall grant the business owner up to 120 days within which to

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

17  must respond to within 90 days.

18         1.  The business-damage offer must include an

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

20  damage and must be prepared by either the owner or a certified

21  public accountant. The business owner shall also provide to

22  the condemning authority copies of the owner's business

23  records that substantiate the good-faith offer to settle the

24  business damage claim. If additional information is needed

25  beyond data that may be obtained from business records

26  existing at the time of the offer, the business owner and

27  condemning authority may agree on a schedule for the

28  submission of such information. Business records that are not

29  provided to the condemning authority under this section may

30  not be used by the business owner either individually or in

31  conjunction with other business records to establish or prove

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                                                  SENATE AMENDMENT

    Bill No. CS for SB 1314

    Amendment No.    





 1  business damage, nor may they be used to establish an award of

 2  attorney's fees.

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

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

 5  income tax returns, federal income tax withholding statements,

 6  federal miscellaneous income tax statements, state sales tax

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

 8  corporate income tax returns for the 5 years preceding

 9  notification which are attributable to the business operation

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

11  by the business owner that substantiate the business-damage

12  claim.

13         (b)  Within 90 days after receipt of the good-faith

14  business-damage offer and accompanying business records, the

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

16  the business owner's offer or make a counteroffer.

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

18  the parties may agree to submit the compensation or

19  business-damage claims to nonbinding mediation. The parties

20  shall agree upon a mediator certified under s. 44.102.

21         (4)  Upon submission of an invoice that complies with

22  the requirements of this subsection, the condemning authority

23  shall pay all reasonable costs, including reasonable

24  attorney's fees and reasonable mediation costs, incurred on

25  behalf of a fee or business property owner under this section

26  for presuit negotiations. In order to qualify for reasonable

27  attorney's fees and costs for presuit negotiations, the fee or

28  business owner must have complied with the requirements of

29  this section and must be entitled to compensation from the

30  condemning authority under this chapter. The invoice must

31  include complete time records and a detailed statement of

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                                                  SENATE AMENDMENT

    Bill No. CS for SB 1314

    Amendment No.    





 1  services performed, including the date on which the service

 2  was performed, the hourly rate charged for the service, and

 3  the person performing the service.

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

 5  this section regarding the amount of compensation to be paid

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

 7  calculated in accordance with s. 73.092(1). When business

 8  damages are paid, attorney's fees incurred in presentation of

 9  the business owner's good-faith offer under paragraph (2)(a)

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

11  and (5), and any subsequent fees which may be payable must be

12  calculated as provided in s. 73.092(1), based on the

13  difference between the final payment of business damages and

14  the counteroffer to the business owner's offer by the

15  condemning authority. Failure of the condemning authority to

16  respond to a business-damage offer as provided in this section

17  must be deemed to be a counteroffer of zero dollars.

18         (b)  Presuit costs must be presented, calculated, and

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

20  submission by the business or property owner to the condemning

21  authority of all appraisal reports, business damage reports,

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

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

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

25  judgment.

26         (c)  If the parties cannot agree on the amount of costs

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

28  the property owner may file a complaint in the circuit court

29  in the county in which the property is located to recover

30  attorney's fees and costs.

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

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                                                  SENATE AMENDMENT

    Bill No. CS for SB 1314

    Amendment No.    





 1  oral statements used in mediation or negotiations between the

 2  parties under this section is inadmissible in any condemnation

 3  proceeding, except in a proceeding to determine reasonable

 4  costs and attorney's fees.

 5         Section 58.  Effective January 1, 2000, section 73.092,

 6  Florida Statutes, is amended to read:

 7         73.092  Attorney's fees.--

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

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

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

11  for the client.

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

13  the difference, exclusive of interest, between the final

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

15  condemning authority before the defendant hires an attorney.

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

17  the defendant hires an attorney, benefits must be measured

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

19         1.  In determining attorney's fees in prelitigation

20  negotiations, benefits do not include amounts awarded for

21  business damages unless the business owner provided to the

22  condemning authority, upon written request, prior to

23  litigation, those financial and business records kept by the

24  owner in the ordinary course of business.

25         2.  In determining attorney's fees subsequent to the

26  filing of litigation, if financial and business records kept

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

28  provided to the condemning authority prior to litigation,

29  benefits for amounts awarded for business damages must be

30  based on the first written offer made by the condemning

31  authority within 120 days after the filing of the eminent

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                                                  SENATE AMENDMENT

    Bill No. CS for SB 1314

    Amendment No.    





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

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

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

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

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

 6  those records. If the condemning authority makes no written

 7  offer to the defendant for business damages within the time

 8  period provided in this section, benefits for amounts awarded

 9  for business damages must be based on the difference between

10  the final judgment or settlement and the last written offer

11  made by the condemning authority before the defendant hired an

12  attorney.

13         (b)  The court may also consider nonmonetary benefits

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

15  to the extent such nonmonetary benefits are specifically

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

17  certainty, be quantified.

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

19  be awarded in accordance with the following schedule:

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

21  plus

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

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

24         3.  Twenty percent of any portion of the benefit

25  exceeding $1 million.

26         (2)  In assessing attorney's fees incurred in defeating

27  an order of taking, or for apportionment, or other

28  supplemental proceedings, when not otherwise provided for, the

29  court shall consider:

30         (a)  The novelty, difficulty, and importance of the

31  questions involved.

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                                                  SENATE AMENDMENT

    Bill No. CS for SB 1314

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 1         (b)  The skill employed by the attorney in conducting

 2  the cause.

 3         (c)  The amount of money involved.

 4         (d)  The responsibility incurred and fulfilled by the

 5  attorney.

 6         (e)  The attorney's time and labor reasonably required

 7  adequately to represent the client in relation to the benefits

 8  resulting to the client.

 9         (f)  The fee, or rate of fee, customarily charged for

10  legal services of a comparable or similar nature.

11         (g)  Any attorney's fee award made under subsection

12  (1).

13         (3)  In determining the amount of attorney's fees to be

14  paid by the petitioner under subsection (2), the court shall

15  be guided by the fees the defendant would ordinarily be

16  expected to pay for these services if the petitioner were not

17  responsible for the payment of those fees.

18         (4)  At least 30 days prior to a hearing to assess

19  attorney's fees under subsection (2), the condemnee's attorney

20  shall submit to the condemning authority and to the court

21  complete time records and a detailed statement of services

22  rendered by date, nature of services performed, time spent

23  performing such services, and costs incurred.

24         (5)  The defendant shall provide to the court a copy of

25  any fee agreement that may exist between the defendant and his

26  or her attorney, and the court must reduce the amount of

27  attorney's fees to be paid by the defendant by the amount of

28  any attorney's fees awarded by the court.

29         Section 59.  Effective January 1, 2000, subsection (1)

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

31         127.01  Counties delegated power of eminent domain;

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                                                  SENATE AMENDMENT

    Bill No. CS for SB 1314

    Amendment No.    





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

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

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

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

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

 6  property so taken and acquired shall vest in such county

 7  unless the county seeks to condemn a particular right or

 8  estate in such property.

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

10  eminent domain power powers granted to the Department of

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

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

13  entry onto property pursuant to s. 337.274.

14         Section 60.  Effective January 1, 2000, subsection (2)

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

16         166.401  Right of eminent domain.--

17         (2)  Each municipality is further authorized to

18  exercise the eminent domain power powers granted to the

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

20  transportation corridor protection provisions of s. 337.273.

21         Section 61.  Effective January 1, 2000, subsection (2)

22  of section 337.27, Florida Statutes, section 337.271, Florida

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

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

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

26  repealed.

27         Section 62.  Effective January 1, 2000, subsections

28  (3), (4), and (5) are added to section 479.15, Florida

29  Statutes, to read:

30         479.15  Harmony of regulations.--

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

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                                                  SENATE AMENDMENT

    Bill No. CS for SB 1314

    Amendment No.    





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

 2  federal roads in eminent domain proceedings, the provisions of

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

 4  the Federal Highway Administration, whenever public

 5  acquisition of land upon which is situated a lawful

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

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

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

 9  along the roadway. The sign owner shall pay all costs

10  associated with relocating or reconstructing any sign under

11  this subsection, and neither the state nor any local

12  government shall reimburse the sign owner for such costs,

13  unless part of such relocation costs are required by federal

14  law.

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

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

17  or height or structurally modified at the point of relocation

18  consistent with the current building codes of the jurisdiction

19  in which the sign is located.

20         (5)  In the event that relocation is inconsistent with

21  the ordinances of the municipality or county within whose

22  jurisdiction the sign is located, the ordinances of the local

23  government shall prevail, provided that the local government

24  shall assume the responsibility to provide the owner of the

25  sign just compensation for its removal. Further, the

26  provisions of this section shall not impair any agreement or

27  future agreements between a municipality or county and the

28  owner of a sign or signs within the jurisdiction of the

29  municipality or county. Nothing in this section shall be

30  deemed to cause a nonconforming sign to become conforming

31  solely as a result of the relocation allowed in this section.

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                                                  SENATE AMENDMENT

    Bill No. CS for SB 1314

    Amendment No.    





 1         Section 63.  Except as otherwise provided in this act,

 2  this act shall take effect July 1, 1999.

 3

 4

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

 6  And the title is amended as follows:

 7         On page 2, line 4, after the semicolon ";"

 8

 9  insert:

10         creating s. 73.015, F.S.; requiring presuit

11         negotiation before an action in eminent domain

12         may be initiated under ch. 73, F.S., or ch. 74,

13         F.S.; providing requirements for the condemning

14         authority; requiring the condemning authority

15         to give specified notices; requiring a written

16         offer of purchase and appraisal and specifying

17         the time period during which the owner may

18         respond to the offer before a condemnation

19         lawsuit may be filed; providing procedures;

20         allowing a business owner to claim business

21         damage within a specified time period;

22         providing circumstances under which the court

23         must strike a business-damage defense;

24         providing procedures for business-damage

25         claims; providing for nonbinding mediation;

26         requiring the condemning authority to pay

27         reasonable costs and attorney's fees of a

28         property owner; allowing the property owner to

29         file a complaint in circuit court to recover

30         attorney's fees and costs, if the parties

31         cannot agree on the amount; providing that

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                                                  SENATE AMENDMENT

    Bill No. CS for SB 1314

    Amendment No.    





 1         certain evidence is inadmissible in specified

 2         proceedings; amending s. 73.092, F.S.; deleting

 3         provisions relating to attorney's fees for

 4         business-damage claims; amending ss. 127.01,

 5         166.401, F.S.; restricting the exercise by

 6         counties and municipalities of specified

 7         eminent domain powers granted to the Department

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

 9         337.271, 348.0008(2), 348.759(2), 348.957(2),

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

11         of lands and property acquired through eminent

12         domain proceedings by the Department of

13         Transportation, the Orlando-Orange County

14         Expressway Authority, or the Seminole County

15         Expressway Authority, or under the Florida

16         Expressway Authority Act, and relating to the

17         notice that the Department of Transportation

18         must give to a fee owner at the inception of

19         negotiations to acquire land; amending s.

20         479.15, F.S.; prescribing duties of local

21         governments with respect thereto;

22

23

24

25

26

27

28

29

30

31

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