HB 1635

1	A bill to be entitled
2	An act relating to eminent domain; repealing s. 73.092,
3	F.S., relating to attorney's fees; amending ss. 73.015,
4	73.032, and 73.091, F.S.; removing cross references and
5	provisions relating to attorney's fees, to conform;
6	providing an effective date.
7
8	Be It Enacted by the Legislature of the State of Florida:
9
10	Section 1.  Section 73.015, Florida Statutes, is amended to
11	read:
12	73.015  Presuit negotiation.--
13	(1)  Effective July 1, 2000, before an eminent domain
14	proceeding is brought under this chapter or chapter 74, the
15	condemning authority must attempt to negotiate in good faith
16	with the fee owner of the parcel to be acquired, must provide
17	the fee owner with a written offer and, if requested, a copy of
18	the appraisal upon which the offer is based, and must attempt to
19	reach an agreement regarding the amount of compensation to be
20	paid for the parcel.
21	(a)  No later than the time the initial written or oral
22	offer of compensation for acquisition is made to the fee owner,
23	the condemning authority must notify the fee owner of the
24	following:
25	1.  That all or a portion of his or her property is
26	necessary for a project.
27	2.  The nature of the project for which the parcel is
28	considered necessary, and the parcel designation of the property
29	to be acquired.
30	3.  That, within 15 business days after receipt of a
31	request by the fee owner, the condemning authority will provide
32	a copy of the appraisal report upon which the offer to the fee
33	owner is based; copies, to the extent prepared, of the right-of-
34	way maps or other documents that depict the proposed taking; and
35	copies, to the extent prepared, of the construction plans that
36	depict project improvements to be constructed on the property
37	taken and improvements to be constructed adjacent to the
38	remaining property, including, but not limited to, plan,
39	profile, cross-section, drainage, and pavement marking sheets,
40	and driveway connection detail. The condemning authority shall
41	provide any additional plan sheets within 15 days of request.
42	4.  The fee owner's statutory rights under s. ss. 73.091
43	and 73.092, or alternatively provide a copy of that provision
44	copies of these provisions of law.
45	5.  The fee owner's rights and responsibilities under
46	paragraphs (b) and (c) and subsection (4), or alternatively
47	provide copies of these provisions of law.
48	(b)  The condemning authority must provide a written offer
49	of compensation to the fee owner as to the value of the property
50	sought to be appropriated and, where less than the entire
51	property is sought to be appropriated, any damages to the
52	remainder caused by the taking. The owner must be given at least
53	30 days after either receipt of the notice or the date the
54	notice is returned as undeliverable by the postal authorities to
55	respond to the offer, before the condemning authority files a
56	condemnation proceeding for the parcel identified in the offer.
57	(c)  The notice and written offer must be sent by certified
58	mail, return receipt requested, to the fee owner's last known
59	address listed on the county ad valorem tax roll. Alternatively,
60	the notice and written offer may be personally delivered to the
61	fee owner of the property. If there is more than one owner of a
62	property, notice to one owner constitutes notice to all owners
63	of the property. The return of the notice as undeliverable by
64	the postal authorities constitutes compliance with this
65	provision. The condemning authority is not required to give
66	notice or a written offer to a person who acquires title to the
67	property after the notice required by this section has been
68	given.
69	(d)  Notwithstanding this subsection, with respect to lands
70	acquired under s. 259.041, the condemning authority is not
71	required to give the fee owner the current appraisal before
72	executing an option contract.
73	(2)  Effective July 1, 2000, before an eminent domain
74	proceeding is brought under this chapter or chapter 74 by the
75	Department of Transportation or by a county, municipality,
76	board, district, or other public body for the condemnation of
77	right-of-way, the condemning authority must make a good faith
78	effort to notify the business owners, including lessees, who
79	operate a business located on the property to be acquired.
80	(a)  The condemning authority must notify the business
81	owner of the following:
82	1.  That all or a portion of his or her property is
83	necessary for a project.
84	2.  The nature of the project for which the parcel is
85	considered necessary, and the parcel designation of the property
86	to be acquired.
87	3.  That, within 15 business days after receipt of a
88	request by the business owner, the condemning authority will
89	provide a copy of the appraisal report upon which the offer to
90	the fee owner is based; copies, to the extent prepared, of the
91	right-of-way maps or other documents that depict the proposed
92	taking; and copies, to the extent prepared, of the construction
93	plans that depict project improvements to be constructed on the
94	property taken and improvements to be constructed adjacent to
95	the remaining property, including, but not limited to, plan,
96	profile, cross-section, drainage, pavement marking sheets, and
97	driveway connection detail. The condemning authority shall
98	provide any additional plan sheets within 15 days of request.
99	4.  The business owner's statutory rights under ss. 73.071
100	and, 73.091, and 73.092.
101	5.  The business owner's rights and responsibilities under
102	paragraphs (b) and (c) and subsection (4).
103	(b)  The notice must be made subsequent to or concurrent
104	with the condemning authority's making the written offer of
105	compensation to the fee owner pursuant to subsection (1). The
106	notice must be sent by certified mail, return receipt requested,
107	to the address of the registered agent for the business located
108	on the property to be acquired, or if no agent is registered, by
109	certified mail or personal delivery to the address of the
110	business located on the property to be acquired. Notice to one
111	owner of a multiple ownership business constitutes notice to all
112	business owners of that business. The return of the notice as
113	undeliverable by the postal authorities constitutes compliance
114	with these provisions. The condemning authority is not required
115	to give notice to a person who acquires an interest in the
116	business after the notice required by this section has been
117	given. Once notice has been made to business owners under this
118	subsection, the condemning authority may file a condemnation
119	proceeding pursuant to chapter 73 or chapter 74 for the property
120	identified in the notice.
121	(c)  If the business qualifies for business damages
122	pursuant to s. 73.071(3)(b) and the business intends to claim
123	business damages, the business owner must, within 180 days after
124	either receipt of the notice or the date the notice is returned
125	as undeliverable by the postal authorities, or at a later time
126	mutually agreed to by the condemning authority and the business
127	owner, submit to the condemning authority a good faith written
128	offer to settle any claims of business damage. The written offer
129	must be sent to the condemning authority by certified mail,
130	return receipt requested. Absent a showing of a good faith
131	justification for the failure to submit a business damage offer
132	within 180 days, the court must strike the business owner's
133	claim for business damages in any condemnation proceeding. If
134	the court finds that the business owner has made a showing of a
135	good faith justification for the failure to timely submit a
136	business damage offer, the court shall grant the business owner
137	up to 180 days within which to submit a business damage offer,
138	which the condemning authority must respond to within 120 days.
139	1.  The business damage offer must include an explanation
140	of the nature, extent, and monetary amount of such damage and
141	must be prepared by the owner, a certified public accountant, or
142	a business damage expert familiar with the nature of the
143	operations of the owner's business. The business owner shall
144	also provide to the condemning authority copies of the owner's
145	business records that substantiate the good faith offer to
146	settle the business damage claim. If additional information is
147	needed beyond data that may be obtained from business records
148	existing at the time of the offer, the business owner and
149	condemning authority may agree on a schedule for the submission
150	of such information.
151	2.  As used in this paragraph, the term "business records"
152	includes, but is not limited to, copies of federal income tax
153	returns, federal income tax withholding statements, federal
154	miscellaneous income tax statements, state sales tax returns,
155	balance sheets, profit and loss statements, and state corporate
156	income tax returns for the 5 years preceding notification which
157	are attributable to the business operation on the property to be
158	acquired, and other records relied upon by the business owner
159	that substantiate the business damage claim.
160	(d)  Within 120 days after receipt of the good faith
161	business damage offer and accompanying business records, the
162	condemning authority must, by certified mail, accept or reject
163	the business owner's offer or make a counteroffer. Failure of
164	the condemning authority to respond to the business damage
165	offer, or rejection thereof pursuant to this section, must be
166	deemed to be a counteroffer of zero dollars for purposes of
167	subsequent application of s. 73.092(1).
168	(3)  At any time in the presuit negotiation process, the
169	parties may agree to submit the compensation or business damage
170	claims to nonbinding mediation. The parties shall agree upon a
171	mediator certified under s. 44.102. In the event that there is a
172	settlement reached as a result of mediation or other mutually
173	acceptable dispute resolution procedure, the agreement reached
174	shall be in writing. The written agreement provided for in this
175	section shall incorporate by reference the right-of-way maps,
176	construction plans, or other documents related to the taking
177	upon which the settlement is based. In the event of a
178	settlement, both parties shall have the same legal rights that
179	would have been available under law if the matter had been
180	resolved through eminent domain proceedings in circuit court
181	with the maps, plans, or other documents having been made a part
182	of the record.
183	(4)  If a settlement is reached between the condemning
184	authority and a property or business owner prior to a lawsuit
185	being filed, the property or business owner who settles
186	compensation claims in lieu of condemnation shall be entitled to
187	recover costs in the same manner as provided in s. 73.091 and
188	attorney's fees in the same manner as provided in s. 73.092,
189	more specifically as follows:
190	(a)  Attorney's fees for presuit negotiations under this
191	section regarding the amount of compensation to be paid for the
192	land, severance damages, and improvements must be calculated in
193	the same manner as provided in s. 73.092(1) unless the parties
194	otherwise agree.
195	(b)  If business damages are recovered by the business
196	owner based on the condemning authority accepting the business
197	owner's initial offer or the business owner accepting the
198	condemning authority's initial counteroffer, attorney's fees
199	must be calculated in accordance with s. 73.092(2), (3), (4),
200	and (5) for the attorney's time incurred in presentation of the
201	business owner's good faith offer under paragraph (2)(c).
202	Otherwise, attorney's fees for the award of business damages
203	must be calculated as provided in s. 73.092(1), based on the
204	difference between the final judgment or settlement of business
205	damages and the counteroffer to the business owner's offer by
206	the condemning authority.
207	(a)(c)  Presuit costs must be presented, calculated, and
208	awarded in the same manner as provided in s. 73.091, after
209	submission by the business or property owner to the condemning
210	authority of all appraisal reports, business damage reports, or
211	other work products for which recovery is sought, and upon
212	transfer of title of the real property by closing, upon payment
213	of any amounts due for business damages, or upon final judgment.
214	(b)(d)  If the parties cannot agree on the amount of costs
215	and attorney's fees to be paid by the condemning authority, the
216	business or property owner may file a complaint in the circuit
217	court in the county in which the property is located to recover
218	attorney's fees and costs.
219
220	This shall only apply when the action is by the Department of
221	Transportation, county, municipality, board, district, or other
222	public body for the condemnation of a road right-of-way.
223	(5)  Evidence of negotiations or of any written or oral
224	statements used in mediation or negotiations between the parties
225	under this section is inadmissible in any condemnation
226	proceeding, except in a proceeding to determine reasonable costs
227	and attorney's fees.
228	Section 2.  Subsections (6), (7), and (8) of section
229	73.032, Florida Statutes, are amended to read:
230	73.032  Offer of judgment.--
231	(6)  If the petitioner rejects the offer of judgment made
232	by defendant and the judgment obtained by defendant, exclusive
233	of any interest accumulated after the offer of judgment was
234	initially made, is equal to or is more than such offer, then the
235	court shall award a reasonable attorney's fee to the defendant
236	based on the factors set forth in s. 73.092(2) and (3).
237	(6)(7)  At the time an offer of judgment is made by the
238	petitioner, the petitioner shall identify and make available to
239	the defendant the construction plans, if any, for the project on
240	which the offer is based.
241	(7)(8)  Evidence of an offer of judgment is admissible only
242	in proceedings to enforce an accepted offer or to determine the
243	costs to be awarded a defendant pursuant to subsection (5) or a
244	reasonable attorney's fee pursuant to subsection (6).
245	Section 3.  Subsection (1) of section 73.091, Florida
246	Statutes, is amended to read:
247	73.091  Costs of the proceedings.--
248	(1)  The petitioner shall pay attorney's fees as provided
249	in s. 73.092 as well as all reasonable costs incurred in the
250	defense of the proceedings in the circuit court, including, but
251	not limited to, reasonable appraisal fees and, when business
252	damages are compensable, a reasonable accountant's fee, to be
253	assessed by that court. No prejudgment interest shall be paid on
254	costs or attorney's fees.
255	Section 4.  Section 73.092, Florida Statutes, is repealed.
256	Section 5.  This act shall take effect July 1, 2005.

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