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





                                                   HOUSE AMENDMENT

    704-114AX-02                                   Bill No. HB 591

    Amendment No.     (for drafter's use only)

                            CHAMBER ACTION
              Senate                               House
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 2                                 .
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 3                                 .
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 4                                                                

 5                                           ORIGINAL STAMP BELOW

 6

 7

 8

 9

10                                                                

11  Representative(s) Goodlette offered the following:

12

13         Amendment (with title amendment) 

14         On page 50, lines 16 & 17,

15  remove from the bill:  all of said lines

16

17  insert:

18         Section 56.  Effective January 1, 2000, section 73.015,

19  Florida Statutes, is created to read:

20         73.015 Presuit negotiation.--

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

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

23  condemning authority must attempt to negotiate in good faith

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

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

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

27  attempt to reach an agreement regarding the amount of

28  compensation to be paid for the parcel.

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

30  the condemning authority must notify the fee owner of the

31  following:

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                                                   HOUSE AMENDMENT

    704-114AX-02                                   Bill No. HB 591

    Amendment No.     (for drafter's use only)





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

 2  necessary for a project.

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

 4  considered necessary, and the parcel designation of the

 5  property to be acquired.

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

 7  request by the fee owner, the condemning authority will

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

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

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

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

12  construction plans that depict project improvements to be

13  constructed on the property taken and improvements to be

14  constructed adjacent to the remaining property, including, but

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

16  pavement marking sheets, and driveway connection detail.  The

17  condemning authority shall provide any additional plan sheets

18  within 15 days of request.

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

20  and 73.092.

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

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

23         (b)  The condemning authority must provide a written

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

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

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

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

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

29  the notice is returned as undeliverable by the postal

30  authorities to respond to the offer, before the condemning

31  authority files a condemnation proceeding for the parcel

                                  2

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                                                   HOUSE AMENDMENT

    704-114AX-02                                   Bill No. HB 591

    Amendment No.     (for drafter's use only)





 1  identified in the offer.

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

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

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

 5  Alternatively, the notice and written offer may be personally

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

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

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

 9  as undeliverable by the postal authorities constitutes

10  compliance with this provision. The condemning authority is

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

12  acquires title to the property after the notice required by

13  this section has been given.

14         (d)  Notwithstanding this subsection, with respect to

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

16  not required to give the fee owner the current appraisal

17  before executing an option contract.

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

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

20  Department of Transportation or by a county, municipality,

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

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

23  effort to notify the business owners, including lessees, who

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

25         (a)  The condemning authority must notify the business

26  owner of the following:

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

28  necessary for a project.

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

30  considered necessary, and the parcel designation of the

31  property to be acquired.

                                  3

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                                                   HOUSE AMENDMENT

    704-114AX-02                                   Bill No. HB 591

    Amendment No.     (for drafter's use only)





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

 2  request by the business owner, the condemning authority will

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

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

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

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

 7  construction plans that depict project improvements to be

 8  constructed on the property taken and improvements to be

 9  constructed adjacent to the remaining property, including, but

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

11  pavement marking sheets, and driveway connection detail.  The

12  condemning authority shall provide any additional plan sheets

13  within 15 days of request.

14         4.  The business owner's statutory rights under ss.

15  73.071, 73.091, and 73.092.

16         5.  The business owner's rights and responsibilities

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

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

19  concurrent with the condemning authority's making the written

20  offer of compensation to the fee owner pursuant to subsection

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

22  receipt requested, to the address of the registered agent for

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

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

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

26  acquired.  Notice to one owner of a multiple ownership

27  business constitutes notice to all business owners of that

28  business.  The return of the notice as undeliverable by the

29  postal authorities constitutes compliance with these

30  provisions.  The condemning authority is not required to give

31  notice to a person who acquires an interest in the business

                                  4

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                                                   HOUSE AMENDMENT

    704-114AX-02                                   Bill No. HB 591

    Amendment No.     (for drafter's use only)





 1  after the notice required by this section has been given.

 2  Once notice has been made to business owners under this

 3  subsection, the condemning authority may file a condemnation

 4  proceeding pursuant to chapter 73 or chapter 74 for the

 5  property identified in the notice.

 6         (c)  If the business qualifies for business damages

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

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

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

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

11  later time mutually agreed to by the condemning authority and

12  the business owner, submit to the condemning authority a

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

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

15  authority by certified mail, return receipt requested.  Absent

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

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

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

19  condemnation proceeding.  If the court finds that the business

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

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

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

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

24  must respond to within 120 days.

25         1.  The business-damage offer must include an

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

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

28  accountant, or a business damage expert familiar with the

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

30  business owner shall also provide to the condemning authority

31  copies of the owner's business records that substantiate the

                                  5

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                                                   HOUSE AMENDMENT

    704-114AX-02                                   Bill No. HB 591

    Amendment No.     (for drafter's use only)





 1  good-faith offer to settle the business damage claim.  If

 2  additional information is needed beyond data that may be

 3  obtained from business records existing at the time of the

 4  offer, the business owner and condemning authority may agree

 5  on a schedule for the submission of such information.

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

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

 8  income tax returns, federal income tax withholding statements,

 9  federal miscellaneous income tax statements, state sales tax

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

11  corporate income tax returns for the 5 years preceding

12  notification which are attributable to the business operation

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

14  by the business owner that substantiate the business-damage

15  claim.

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

17  business-damage offer and accompanying business records, the

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

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

20  the condemning authority to respond to the business damage

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

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

23  subsequent application of s. 73.092(1).

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

25  the parties may agree to submit the compensation or

26  business-damage claims to nonbinding mediation. The parties

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

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

29  mediation or other mutually acceptable dispute resolution

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

31  written agreement provided for in this section shall

                                  6

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                                                   HOUSE AMENDMENT

    704-114AX-02                                   Bill No. HB 591

    Amendment No.     (for drafter's use only)





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

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

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

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

 5  available under law if the matter had been resolved through

 6  eminent domain proceedings in circuit court with the maps,

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

 8  record.

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

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

11  being filed, the property or business owner who settles

12  compensation claims in lieu of condemnation shall be entitled

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

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

15  73.092, more specifically as follows:

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

17  this section regarding the amount of compensation to be paid

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

19  calculated in the same manner as provided in s. 73.092(1)

20  unless the parties otherwise agree.

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

22  owner based on the condemning authority accepting the business

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

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

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

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

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

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

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

30  difference between the final judgment or settlement of

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

                                  7

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                                                   HOUSE AMENDMENT

    704-114AX-02                                   Bill No. HB 591

    Amendment No.     (for drafter's use only)





 1  offer by the condemning authority.

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

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

 4  submission by the business or property owner to the condemning

 5  authority of all appraisal reports, business damage reports,

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

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

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

 9  judgment.

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

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

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

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

14  to recover attorney's fees and costs.

15

16  Investor-owned utilities are exempt from the provisions of

17  this subsection.

18         (5)  Evidence of negotiations or of any written or oral

19  statements used in mediation or negotiations between the

20  parties under this section is inadmissible in any condemnation

21  proceeding, except in a proceeding to determine reasonable

22  costs and attorney's fees.

23         Section 57.  Effective January 1, 2000, subsection (3)

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

25         73.071  Jury trial; compensation; severance damages;

26  business damages.--

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

28  compensation to be paid, which compensation shall include:

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

30  appropriated;

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

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                                                   HOUSE AMENDMENT

    704-114AX-02                                   Bill No. HB 591

    Amendment No.     (for drafter's use only)





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

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

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

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

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

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

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

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

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

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

11  claiming the right to recover such special damages shall set

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

13  such damages; and

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

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

16  320.01, is located, whether or not the owner of the mobile

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

18  effect of the taking of the property involved requires the

19  relocation of such mobile home, the reasonable removal or

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

21  exceed the replacement value of such mobile home.  The

22  compensation paid to a mobile home owner under this paragraph

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

24  expenses of removal or relocation.  Any mobile home owner

25  claiming the right to such removal or relocation expenses

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

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

28  any governmental authority exercising its power of eminent

29  domain when reasonable removal or relocation expenses must be

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

31  agency rule applicable to such exercise of power.

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                                                   HOUSE AMENDMENT

    704-114AX-02                                   Bill No. HB 591

    Amendment No.     (for drafter's use only)





 1         Section 58.  Effective January 1, 2000, the amendments

 2  to subsection (3) of section 73.071, Florida Statutes, as

 3  contained in this act shall stand repealed effective January

 4  1, 2003.

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

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

 7         73.091  Costs of the proceedings.--

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

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

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

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

12  when business damages are compensable, a reasonable

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

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

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

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

17         73.092  Attorney's fees.--

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

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

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

21  for the client.

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

23  the difference, exclusive of interest, between the final

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

25  condemning authority before the defendant hires an attorney.

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

27  the defendant hires an attorney, benefits must be measured

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

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

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

31  ordinary course of business were provided to the condemning

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                                                   HOUSE AMENDMENT

    704-114AX-02                                   Bill No. HB 591

    Amendment No.     (for drafter's use only)





 1  authority to substantiate the business damage offer in s.

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

 3  damages must be based on the difference between the final

 4  judgment or settlement and the written counteroffer made by

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

 6         2.  In determining attorney's fees, if existing

 7  business records as defined in s. 73.015(2)(c)2. and kept by

 8  the owner in the ordinary course of business were not provided

 9  to the condemning authority to substantiate the business

10  damage offer in s. 73.015(2)(c) and those records which were

11  not provided are later deemed material to the determination of

12  business damages, benefits for amounts awarded for business

13  damages must be based upon the difference between the final

14  judgment or settlement and the first written counteroffer made

15  by the condemning authority within 90 days from the condemning

16  authority's receipt of the business records previously not

17  provided.

18         1.  In determining attorney's fees in prelitigation

19  negotiations, benefits do not include amounts awarded for

20  business damages unless the business owner provided to the

21  condemning authority, upon written request, prior to

22  litigation, those financial and business records kept by the

23  owner in the ordinary course of business.

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

25  filing of litigation, if financial and business records kept

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

27  provided to the condemning authority prior to litigation,

28  benefits for amounts awarded for business damages must be

29  based on the first written offer made by the condemning

30  authority within 120 days after the filing of the eminent

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

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                                                   HOUSE AMENDMENT

    704-114AX-02                                   Bill No. HB 591

    Amendment No.     (for drafter's use only)





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

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

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

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

 5  those records. If the condemning authority makes no written

 6  offer to the defendant for business damages within the time

 7  period provided in this section, benefits for amounts awarded

 8  for business damages must be based on the difference between

 9  the final judgment or settlement and the last written offer

10  made by the condemning authority before the defendant hired an

11  attorney.

12         (b)  The court may also consider nonmonetary benefits

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

14  to the extent such nonmonetary benefits are specifically

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

16  certainty, be quantified.

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

18  be awarded in accordance with the following schedule:

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

20  plus

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

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

23         3.  Twenty percent of any portion of the benefit

24  exceeding $1 million.

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

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

27         127.01  Counties delegated power of eminent domain;

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

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

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

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

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                                                   HOUSE AMENDMENT

    704-114AX-02                                   Bill No. HB 591

    Amendment No.     (for drafter's use only)





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

 2  property so taken and acquired shall vest in such county

 3  unless the county seeks to condemn a particular right or

 4  estate in such property.

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

 6  eminent domain power powers granted to the Department of

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

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

 9  entry onto property pursuant to s. 337.274.

10         Section 62.  Effective January 1, 2000, subsection (2)

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

12         166.401  Right of eminent domain.--

13         (2)  Each municipality is further authorized to

14  exercise the eminent domain power powers granted to the

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

16  transportation corridor protection provisions of s. 337.273.

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

18  of section 337.27, section 337.271, subsection (2) of section

19  348.0008, subsection (2) of section 348.759, and subsection

20  (2) of section 348.957, Florida Statutes, are repealed.

21         Section 64.  Except as otherwise provided herein, this

22  act shall take effect July 1, 1999.

23

24

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

26  And the title is amended as follows:

27         On page 2, line 4,

28  remove from the title of the bill:  all of said line

29

30  and insert in lieu thereof:

31         system; amending s. 73.015, F.S.; requiring

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                                                   HOUSE AMENDMENT

    704-114AX-02                                   Bill No. HB 591

    Amendment No.     (for drafter's use only)





 1         presuit negotiation before an action in eminent

 2         domain may be initiated under ch. 73 or ch. 74,

 3         F.S.; providing requirements for the condemning

 4         authority; requiring the condemning authority

 5         to give specified notices; requiring a written

 6         offer of purchase and appraisal and specifying

 7         the time period during which the owner may

 8         respond to the offer before a condemnation

 9         lawsuit may be filed; providing procedures;

10         allowing a business owner to claim business

11         damage within a specified time period;

12         providing circumstances under which the court

13         must strike a business-damage defense;

14         providing procedures for business-damage

15         claims; providing for nonbinding mediation;

16         requiring the condemning authority to pay

17         reasonable costs and attorney's fees of a

18         property owner; allowing the property owner to

19         file a complaint in circuit court to recover

20         attorney's fees and costs, if the parties

21         cannot agree on the amount; providing that

22         certain evidence is inadmissible in specified

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

24         modifying eligibility requirements for business

25         owners to claim business damages; providing for

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

27         providing that no prejudgment interest shall be

28         paid on costs or attorney's fees in eminent

29         domain; amending s. 73.092, F.S.; revising

30         provisions relating to attorney's fees for

31         business-damage claims; amending ss. 127.01 and

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                                                   HOUSE AMENDMENT

    704-114AX-02                                   Bill No. HB 591

    Amendment No.     (for drafter's use only)





 1         166.401, F.S.; restricting the exercise by

 2         counties and municipalities of specified

 3         eminent domain powers granted to the Department

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

 5         337.271, 348.0008(2), 348.759(2), 348.957(2),

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

 7         of lands and property acquired through eminent

 8         domain proceedings by the Department of

 9         Transportation, the Orlando-Orange County

10         Expressway Authority, or the Seminole County

11         Expressway Authority, or under the Florida

12         Expressway Authority Act, and relating to the

13         notice that the Department of Transportation

14         must give to a fee owner at the inception of

15         negotiations to acquire land; providing

16         effective dates.

17

18

19

20

21

22

23

24

25

26

27

28

29

30

31

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