Florida Senate - 2022 COMMITTEE AMENDMENT Bill No. SB 620 Ì712522uÎ712522 LEGISLATIVE ACTION Senate . House Comm: RCS . 01/20/2022 . . . . ————————————————————————————————————————————————————————————————— ————————————————————————————————————————————————————————————————— 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;