Florida Senate - 2022                        COMMITTEE AMENDMENT
       Bill No. SB 620
       
       
       
       
       
       
                                Ì712522uÎ712522                         
       
                              LEGISLATIVE ACTION                        
                    Senate             .             House              
                  Comm: RCS            .                                
                  01/20/2022           .                                
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       The Committee on Appropriations (Hutson) recommended the
       following:
       
    1         Senate Amendment (with title amendment)
    2  
    3         Delete lines 66 - 253
    4  and insert:
    5         (a) Except as provided in paragraph (c), a business may
    6  claim business damages from a county or municipality if:
    7         1. The county or municipality enacts or amends an ordinance
    8  or a charter that has or will cause a reduction of at least 15
    9  percent of the business’ profit as applied on a per location
   10  basis of a business operated within the jurisdiction; and
   11         2. The business has engaged in lawful business in this
   12  state for the 3 years preceding the enactment of or amendment to
   13  the ordinance or charter.
   14         (b)The amount of business damages may be established by
   15  any reasonable method, but the amount of business damages that
   16  may be recovered by a business may not exceed:
   17         1.The present value of 7 years’ lost profits; or
   18         2.An amount equal to the business’ gross receipts for the
   19  60 months preceding the date of enactment of or amendment to the
   20  ordinance or charter provision. This subparagraph applies if the
   21  ordinance or charter will cause a total loss of profit.
   22         (c) A county or municipality is not liable for business
   23  damages caused by:
   24         1. An ordinance or a charter provision that is required to
   25  comply with state or federal law;
   26         2. Emergency ordinances, declarations, or orders adopted by
   27  a county or municipality under ss. 252.31-252.60, the State
   28  Emergency Management Act;
   29         3. A temporary emergency ordinance enacted pursuant to s.
   30  125.66 or s. 166.041 which remains in effect for no more than 90
   31  days;
   32         4. An ordinance or charter provision enacted to implement:
   33         a. Part II of chapter 163, relating to growth policy,
   34  county and municipal planning, and land development regulation;
   35         b. Section 553.73, relating to the Florida Building Code;
   36  or
   37         c. Section 633.202, relating to the Florida Fire Prevention
   38  Code;
   39         5. An ordinance or charter provision required to implement
   40  a contract or agreement, including, but not limited to, any
   41  federal, state, local, or private grant, or other financial
   42  assistance accepted by a county government;
   43         6. An ordinance or charter provision relating to the
   44  issuance or refinancing of debt; or
   45         7. An ordinance or charter provision relating to the
   46  adoption of a budget or budget amendment.
   47         (3) PRESUIT PROCEDURES.—
   48         (a) At least 180 days before a business files an action
   49  under this section against a county or municipality and within
   50  180 days after the effective date of the relevant ordinance or
   51  charter provision, the business must present a written offer to
   52  settle the business’ claim for business damages to the head of
   53  the county or municipality enacting or amending the ordinance.
   54  The settlement offer must be made in good faith and include an
   55  explanation of the nature, extent, and monetary amount of
   56  damages and must be prepared by the owner, a certified public
   57  accountant, or a business damage expert familiar with the nature
   58  of the operations of the business. The business must also
   59  provide copies of the business’ records that substantiate the
   60  offer to settle the business damage claim. If additional
   61  information is needed beyond the data that may be obtained from
   62  business records existing at the time of the offer, the business
   63  and county or municipality may agree on a schedule for the
   64  submission of that information.
   65         (b) Within 120 days after receipt of the good faith
   66  business damage offer and accompanying business records, the
   67  county or municipality must, by certified mail, accept or reject
   68  the business’ offer or make a counteroffer. Failure of the
   69  county or municipality to respond to or reject the business
   70  damage offer must be deemed to be a counteroffer of zero dollars
   71  for purposes of calculating attorney fees under subsection (6)
   72  solely based upon the benefits achieved for the business.
   73         (c) If the business and the county or municipality reach a
   74  settlement before a lawsuit is filed, the business that settles
   75  the claim for business damages in lieu of litigation is entitled
   76  to recover costs in the same manner as provided in subsection
   77  (5) and attorney fees in the same manner as provided in
   78  subsection (6), more specifically as follows:
   79         1. If the business recovers business damages based upon the
   80  county or municipality accepting the business’ initial offer or
   81  the business accepting the county’s or municipality’s initial
   82  counteroffer, attorney fees must be calculated in accordance
   83  with paragraphs (6)(c), (d), (e), and (f) for the attorney’s
   84  time required to present the business’ good faith offer.
   85  Otherwise, attorney fees for the award of business damages must
   86  be calculated as provided in paragraphs (6)(a) and (b), based
   87  upon the difference between the final judgment or settlement of
   88  business damages and the county’s or municipality’s counteroffer
   89  to the business owner’s offer.
   90         2.Presuit costs must be presented, calculated, and awarded
   91  in the same manner as provided in subsection (5), after the
   92  business owner submits to the county or municipality all
   93  business damage reports or other work products for which
   94  recovery is sought and upon the county or municipality paying
   95  any amounts due for business damages or upon final judgment.
   96         3. If the parties cannot agree on the amount of costs and
   97  attorney fees to be paid by the county or municipality, the
   98  business owner may file a complaint in the circuit court in the
   99  county in which the business is located to recover attorney fees
  100  and costs. If a business files a complaint for business damages,
  101  it must be filed within 1 year after the effective date of the
  102  relevant ordinance, ordinance amendment, or charter provision.
  103         (d) Evidence of negotiations or of any written or oral
  104  statements used in mediation or negotiations between the parties
  105  under this section is inadmissible in any proceeding for
  106  business damages, except in a proceeding to determine reasonable
  107  costs and attorney fees.
  108         (4)OPPORTUNITY TO CURE.—There is no liability under this
  109  section for a county or municipality that, within the 120-day
  110  timeframe provided for in subsection (3)(b):
  111         (a) Repeals the ordinance or charter provision that gave
  112  rise to the business’ claim;
  113         (b) Amends the ordinance or charter provision that gave
  114  rise to the business’ claim in a manner that returns the
  115  ordinance or charter provision to its form in existence before
  116  the business’ claim arose; or
  117         (c) Publishes notice of its intent to repeal or amend the
  118  ordinance that gave rise to the business’ claim and, within 30
  119  days after publication of the notice, amends the ordinance in a
  120  manner that returns the ordinance to its form in existence
  121  before the business’ claim arose or repeals the ordinance.
  122         (5)COSTS.—
  123         (a) If a business recovers business damages, the county or
  124  municipality must pay the business’ reasonable costs, including
  125  a reasonable accountant’s fee. Prejudgment interest may not be
  126  paid on costs or attorney fees.
  127         (b) At least 30 days before a hearing to assess costs under
  128  this subsection, the attorney for the business shall submit to
  129  the county or municipality for each expert witness the expert
  130  witness complete time records and a detailed statement of
  131  services rendered by date, nature of services performed, time
  132  spent performing the services, and costs incurred and a copy of
  133  any fee agreement that may exist between the expert witness and
  134  the business or the business’ attorney.
  135         (c) In assessing costs, the court shall consider all
  136  factors relevant to the reasonableness of the costs, including,
  137  but not limited to, the fees paid to similar experts retained in
  138  the case by the county or municipality or other parties and the
  139  reasonable costs of similar services by similarly qualified
  140  persons.
  141         (d) In assessing costs to be paid by the county or
  142  municipality, the court shall be guided by the amount the
  143  business would ordinarily have been expected to pay for the
  144  services rendered if the county or municipality was not
  145  responsible for the costs.
  146         (e) The court shall make specific findings that justify
  147  each sum awarded as an expert witness fee.
  148         (6) ATTORNEY FEES.—
  149         (a) As used in this subsection, the term “benefits” means
  150  the difference, exclusive of interest, between the final
  151  judgment or settlement and the last written offer made by the
  152  county or municipality before the business hires an attorney. If
  153  the county or municipality does not make a written settlement
  154  offer before the business hires an attorney, benefits must be
  155  measured from the first written offer after the attorney is
  156  hired.
  157         (b)1. In determining attorney fees, if business records
  158  kept by the owner in the ordinary course of business were
  159  provided to the county or municipality to substantiate the
  160  business damage offer made by the business, benefits for amounts
  161  awarded for business damages must be based upon the difference
  162  between the final judgment or settlement and the written
  163  counteroffer made by the county or municipality.
  164         2. In determining attorney fees, if existing business
  165  records kept by the owner in the ordinary course of business
  166  were not provided to the county or municipality to substantiate
  167  the business damage offer made by the business and those records
  168  that were not provided are later deemed material to the
  169  determination of business damages, benefits for amounts awarded
  170  for business damages must be based upon the difference between
  171  the final judgment or settlement and the first written
  172  counteroffer made by the county or municipality within 90 days
  173  after the receipt of the business records previously not
  174  provided to the county or municipality.
  175         3. The court may also consider nonmonetary benefits
  176  obtained for the business through the efforts of the attorney,
  177  to the extent such nonmonetary benefits are specifically
  178  identified by the court and can, within a reasonable degree of
  179  certainty, be quantified.
  180         4.Attorney fees based upon benefits achieved shall be
  181  awarded in accordance with the following schedule:
  182         a. Thirty-three percent of any benefit up to $250,000; plus
  183         b. Twenty-five percent of any portion of the benefit
  184  between $250,000 and $1 million; plus
  185         c. Twenty percent of any portion of the benefit exceeding
  186  $1 million.
  187         (c) In assessing attorney fees in a claim for business
  188  damages, when not otherwise provided for, the court shall
  189  consider:
  190         1. The novelty, difficulty, and importance of the questions
  191  involved.
  192         2. The skill employed by the attorney in conducting the
  193  case.
  194         3. The amount of money involved.
  195         4. The responsibility incurred and fulfilled by the
  196  attorney.
  197         5. The attorney’s time and labor reasonably required to
  198  adequately represent the client in relation to the benefits
  199  resulting to the client.
  200         6. The fee, or rate of fee, customarily charged for legal
  201  services of a comparable or similar nature.
  202         (d) In determining the amount of attorney fees to be paid
  203  by the county or municipality under paragraph (c), the court
  204  shall be guided by the fees the business would ordinarily be
  205  expected to pay for these services if the county or municipality
  206  was not responsible for the payment of those fees.
  207         (e) At least 30 days before a hearing to assess attorney
  208  fees under paragraph (c), the attorney for the business shall
  209  submit to the county or municipality and to the court complete
  210  time records and a detailed statement of services rendered by
  211  date, nature of services performed, time spent performing the
  212  services, and costs incurred.
  213         (f) The business shall provide to the court a copy of any
  214  fee agreement that may exist between the business and its
  215  attorney, and the court must reduce the amount of attorney fees
  216  to be paid by the business by the amount of any attorney fees
  217  awarded by the court.
  218         (7) TRIAL.—A business claiming the right to recover
  219  business damages must state in its complaint the nature and
  220  extent of those damages. At trial, a jury shall determine
  221  whether a business is entitled to business damages and the
  222  amount of damages, if any. However, the business may elect to
  223  have business damages determined by the court.
  224         (8) APPLICATION; CONSTRUCTION.—This section does not apply
  225  to a business that may claim business damages under chapter 73
  226  and may not be construed to authorize double recoveries.
  227         Section 2. This act applies to county and municipal
  228  ordinances or charter provisions enacted or amended on or after
  229  the effective date of this act.
  230         Section 3. This act shall take effect upon becoming a law.
  231  
  232  ================= T I T L E  A M E N D M E N T ================
  233  And the title is amended as follows:
  234         Delete lines 7 - 14
  235  and insert:
  236         charter provisions; limiting the amount of business
  237         damages that may be recovered; specifying ordinances
  238         and charter provisions that do not result in liability
  239         for business damages; requiring businesses and
  240         counties or municipalities to follow certain presuit
  241         procedures before businesses file an action for
  242         business damages; authorizing businesses to recover
  243         costs and fees in a specified manner and if certain
  244         requirements are met; specifying that certain evidence
  245         relating to mediations and negotiations is
  246         inadmissible as evidence in certain proceedings;
  247         specifying that counties and municipalities are not
  248         liable for damages if they take certain actions within
  249         a specified timeframe;