Florida Senate - 2022 CS for SB 620 By the Committee on Appropriations; and Senator Hutson 576-02163-22 2022620c1 1 A bill to be entitled 2 An act relating to local government; creating s. 3 70.91, F.S.; defining the term “business records”; 4 authorizing certain businesses to claim business 5 damages from a county or municipality if the county or 6 municipality enacts or amends certain ordinances or 7 charter provisions; limiting the amount of business 8 damages that may be recovered; specifying ordinances 9 and charter provisions that do not result in liability 10 for business damages; requiring businesses and 11 counties or municipalities to follow certain presuit 12 procedures before businesses file an action for 13 business damages; authorizing businesses to recover 14 costs and fees in a specified manner and if certain 15 requirements are met; specifying that certain evidence 16 relating to mediations and negotiations is 17 inadmissible as evidence in certain proceedings; 18 specifying that counties and municipalities are not 19 liable for damages if they take certain actions within 20 a specified timeframe; requiring courts to consider 21 certain factors and follow specified guidance when 22 assessing costs; defining the term “benefits”; 23 specifying requirements for the courts in determining 24 and awarding attorney fees; requiring attorneys and 25 businesses to submit certain documentation relating to 26 attorney fees; requiring businesses claiming the right 27 to recover business damages to state the nature and 28 extent of the damages; requiring a jury to determine 29 whether a business is entitled to business damages and 30 the amount of such damages unless the business elects 31 to have the business damages determined by the court; 32 providing applicability and construction; providing an 33 effective date. 34 35 WHEREAS, the Legislature recognizes that the continued 36 economic growth and economic prosperity of this state are tied 37 to the protection of private property rights and the stability 38 of laws, ordinances, and charter provisions, and 39 WHEREAS, the Legislature recognizes that the protection of 40 private property rights and the stability of laws and local 41 rules and regulations affecting business activities encourage 42 investments by businesses in their real property, facilities, 43 operations, and workforces, and 44 WHEREAS, investments by businesses drive the economic 45 growth of a community, and 46 WHEREAS, the economic costs of local rules and regulations 47 that are primarily for the benefit of a county or municipality 48 as a whole should be borne by the county or municipality as a 49 whole, and 50 WHEREAS, the Legislature intends to require counties and 51 municipalities to compensate businesses for business damages 52 when an ordinance or a charter provision causes a business 53 significant economic harm, NOW, THEREFORE, 54 55 Be It Enacted by the Legislature of the State of Florida: 56 57 Section 1. Section 70.91, Florida Statutes, is created to 58 read: 59 70.91 Compensation for business damages caused by county or 60 municipal ordinances or charter provisions.— 61 (1) DEFINITION.—For purposes of this section, the term 62 “business records” includes, but is not limited to, copies of 63 federal income tax returns, federal income tax withholding 64 statements, federal miscellaneous income tax statements, state 65 sales tax returns, balance sheets, profit and loss statements, 66 state corporate income tax returns for the 3 years preceding the 67 enactment of or amendment to an ordinance or a charter, and 68 other records relied upon by a business to substantiate a claim 69 for business damages. 70 (2) CLAIMS FOR BUSINESS DAMAGES.— 71 (a) Except as provided in paragraph (c), a business may 72 claim business damages from a county or municipality if: 73 1. The county or municipality enacts or amends an ordinance 74 or a charter that has or will cause a reduction of at least 15 75 percent of the business’ profit as applied on a per location 76 basis of a business operated within the jurisdiction; and 77 2. The business has engaged in lawful business in this 78 state for the 3 years preceding the enactment of or amendment to 79 the ordinance or charter. 80 (b) The amount of business damages may be established by 81 any reasonable method, but the amount of business damages that 82 may be recovered by a business may not exceed: 83 1. The present value of 7 years’ lost profits; or 84 2. An amount equal to the business’ gross receipts for the 85 60 months preceding the date of enactment of or amendment to the 86 ordinance or charter provision. This subparagraph applies if the 87 ordinance or charter will cause a total loss of profit. 88 (c) A county or municipality is not liable for business 89 damages caused by: 90 1. An ordinance or a charter provision that is required to 91 comply with state or federal law; 92 2. Emergency ordinances, declarations, or orders adopted by 93 a county or municipality under ss. 252.31-252.60, the State 94 Emergency Management Act; 95 3. A temporary emergency ordinance enacted pursuant to s. 96 125.66 or s. 166.041 which remains in effect for no more than 90 97 days; 98 4. An ordinance or charter provision enacted to implement: 99 a. Part II of chapter 163, relating to growth policy, 100 county and municipal planning, and land development regulation; 101 b. Section 553.73, relating to the Florida Building Code; 102 or 103 c. Section 633.202, relating to the Florida Fire Prevention 104 Code; 105 5. An ordinance or charter provision required to implement 106 a contract or agreement, including, but not limited to, any 107 federal, state, local, or private grant, or other financial 108 assistance accepted by a county or municipal government; 109 6. An ordinance or charter provision relating to the 110 issuance or refinancing of debt; or 111 7. An ordinance or charter provision relating to the 112 adoption of a budget or budget amendment. 113 (3) PRESUIT PROCEDURES.— 114 (a) At least 180 days before a business files an action 115 under this section against a county or municipality and within 116 180 days after the effective date of the relevant ordinance or 117 charter provision, the business must present a written offer to 118 settle the business’ claim for business damages to the head of 119 the county or municipality enacting or amending the ordinance. 120 The settlement offer must be made in good faith and include an 121 explanation of the nature, extent, and monetary amount of 122 damages and must be prepared by the owner, a certified public 123 accountant, or a business damage expert familiar with the nature 124 of the operations of the business. The business must also 125 provide copies of the business’ records that substantiate the 126 offer to settle the business damage claim. If additional 127 information is needed beyond the data that may be obtained from 128 business records existing at the time of the offer, the business 129 and county or municipality may agree on a schedule for the 130 submission of that information. 131 (b) Within 120 days after receipt of the good faith 132 business damage offer and accompanying business records, the 133 county or municipality must, by certified mail, accept or reject 134 the business’ offer or make a counteroffer. Failure of the 135 county or municipality to respond to or reject the business 136 damage offer must be deemed to be a counteroffer of zero dollars 137 for purposes of calculating attorney fees under subsection (6) 138 solely based upon the benefits achieved for the business. 139 (c) If the business and the county or municipality reach a 140 settlement before a lawsuit is filed, the business that settles 141 the claim for business damages in lieu of litigation is entitled 142 to recover costs in the same manner as provided in subsection 143 (5) and attorney fees in the same manner as provided in 144 subsection (6), more specifically as follows: 145 1. If the business recovers business damages based upon the 146 county or municipality accepting the business’ initial offer or 147 the business accepting the county’s or municipality’s initial 148 counteroffer, attorney fees must be calculated in accordance 149 with paragraphs (6)(c)-(f) for the attorney’s time required to 150 present the business’ good faith offer. Otherwise, attorney fees 151 for the award of business damages must be calculated as provided 152 in paragraphs (6)(a) and (b), based upon the difference between 153 the final judgment or settlement of business damages and the 154 county’s or municipality’s counteroffer to the business owner’s 155 offer. 156 2. Presuit costs must be presented, calculated, and awarded 157 in the same manner as provided in subsection (5), after the 158 business owner submits to the county or municipality all 159 business damage reports or other work products for which 160 recovery is sought and upon the county or municipality paying 161 any amounts due for business damages or upon final judgment. 162 3. If the parties cannot agree on the amount of costs and 163 attorney fees to be paid by the county or municipality, the 164 business owner may file a complaint in the circuit court in the 165 county in which the business is located to recover attorney fees 166 and costs. If a business files a complaint for business damages, 167 it must be filed within 1 year after the effective date of the 168 relevant ordinance, ordinance amendment, or charter provision. 169 (d) Evidence of negotiations or of any written or oral 170 statements used in mediation or negotiations between the parties 171 under this section is inadmissible in any proceeding for 172 business damages, except in a proceeding to determine reasonable 173 costs and attorney fees. 174 (4) OPPORTUNITY TO CURE.—There is no liability under this 175 section for a county or municipality that, within the 120-day 176 timeframe provided for in subsection (3)(b): 177 (a) Repeals the ordinance or charter provision that gave 178 rise to the business’ claim; 179 (b) Amends the ordinance or charter provision that gave 180 rise to the business’ claim in a manner that returns the 181 ordinance or charter provision to its form in existence before 182 the business’ claim arose; or 183 (c) Publishes notice of its intent to repeal or amend the 184 ordinance that gave rise to the business’ claim and, within 30 185 days after publication of the notice, amends the ordinance in a 186 manner that returns the ordinance to its form in existence 187 before the business’ claim arose or repeals the ordinance. 188 (5) COSTS.— 189 (a) If a business recovers business damages, the county or 190 municipality must pay the business’ reasonable costs, including 191 a reasonable accountant’s fee. Prejudgment interest may not be 192 paid on costs or attorney fees. 193 (b) At least 30 days before a hearing to assess costs under 194 this subsection, the attorney for the business shall submit to 195 the county or municipality for each expert witness the expert 196 witness’ complete time records and a detailed statement of 197 services rendered by date, nature of services performed, time 198 spent performing the services, and costs incurred and a copy of 199 any fee agreement that may exist between the expert witness and 200 the business or the business’ attorney. 201 (c) In assessing costs, the court shall consider all 202 factors relevant to the reasonableness of the costs, including, 203 but not limited to, the fees paid to similar experts retained in 204 the case by the county or municipality or other parties and the 205 reasonable costs of similar services by similarly qualified 206 persons. 207 (d) In assessing costs to be paid by the county or 208 municipality, the court shall be guided by the amount the 209 business would ordinarily have been expected to pay for the 210 services rendered if the county or municipality was not 211 responsible for the costs. 212 (e) The court shall make specific findings that justify 213 each sum awarded as an expert witness fee. 214 (6) ATTORNEY FEES.— 215 (a) As used in this subsection, the term “benefits” means 216 the difference, exclusive of interest, between the final 217 judgment or settlement and the last written offer made by the 218 county or municipality before the business hires an attorney. If 219 the county or municipality does not make a written settlement 220 offer before the business hires an attorney, benefits must be 221 measured from the first written offer after the attorney is 222 hired. 223 (b)1. In determining attorney fees, if business records 224 kept by the owner in the ordinary course of business were 225 provided to the county or municipality to substantiate the 226 business damage offer made by the business, benefits for amounts 227 awarded for business damages must be based upon the difference 228 between the final judgment or settlement and the written 229 counteroffer made by the county or municipality. 230 2. In determining attorney fees, if existing business 231 records kept by the owner in the ordinary course of business 232 were not provided to the county or municipality to substantiate 233 the business damage offer made by the business and those records 234 that were not provided are later deemed material to the 235 determination of business damages, benefits for amounts awarded 236 for business damages must be based upon the difference between 237 the final judgment or settlement and the first written 238 counteroffer made by the county or municipality within 90 days 239 after the receipt of the business records previously not 240 provided to the county or municipality. 241 3. The court may also consider nonmonetary benefits 242 obtained for the business through the efforts of the attorney, 243 to the extent such nonmonetary benefits are specifically 244 identified by the court and can, within a reasonable degree of 245 certainty, be quantified. 246 4. Attorney fees based upon benefits achieved shall be 247 awarded in accordance with the following schedule: 248 a. Thirty-three percent of any benefit up to $250,000; plus 249 b. Twenty-five percent of any portion of the benefit 250 between $250,000 and $1 million; plus 251 c. Twenty percent of any portion of the benefit exceeding 252 $1 million. 253 (c) In assessing attorney fees in a claim for business 254 damages, when not otherwise provided for, the court shall 255 consider: 256 1. The novelty, difficulty, and importance of the questions 257 involved. 258 2. The skill employed by the attorney in conducting the 259 case. 260 3. The amount of money involved. 261 4. The responsibility incurred and fulfilled by the 262 attorney. 263 5. The attorney’s time and labor reasonably required to 264 adequately represent the client in relation to the benefits 265 resulting to the client. 266 6. The fee, or rate of fee, customarily charged for legal 267 services of a comparable or similar nature. 268 (d) In determining the amount of attorney fees to be paid 269 by the county or municipality under paragraph (c), the court 270 shall be guided by the fees the business would ordinarily be 271 expected to pay for these services if the county or municipality 272 was not responsible for the payment of those fees. 273 (e) At least 30 days before a hearing to assess attorney 274 fees under paragraph (c), the attorney for the business shall 275 submit to the county or municipality and to the court complete 276 time records and a detailed statement of services rendered by 277 date, nature of services performed, time spent performing the 278 services, and costs incurred. 279 (f) The business shall provide to the court a copy of any 280 fee agreement that may exist between the business and its 281 attorney, and the court must reduce the amount of attorney fees 282 to be paid by the business by the amount of any attorney fees 283 awarded by the court. 284 (7) TRIAL.—A business claiming the right to recover 285 business damages must state in its complaint the nature and 286 extent of those damages. At trial, a jury shall determine 287 whether a business is entitled to business damages and the 288 amount of damages, if any. However, the business may elect to 289 have business damages determined by the court. 290 (8) APPLICATION; CONSTRUCTION.—This section does not apply 291 to a business that may claim business damages under chapter 73 292 and may not be construed to authorize double recoveries. 293 Section 2. This act applies to county and municipal 294 ordinances or charter provisions enacted or amended on or after 295 the effective date of this act. 296 Section 3. This act shall take effect upon becoming a law.