HB 569 2022
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F L O R I D A H O U S E O F R E P R E S E N T A T I V E S
A bill to be entitled 1
An act relating to business damages caused by local 2
governments; creating s. 70.91, F.S.; defining the 3
term "business records"; authorizing certain 4
businesses to claim business damages from a county or 5
municipality if the county or municipality enacts or 6
amends certain ordinances or charter provisions; 7
providing exceptions; requiring businesses and 8
counties or municipalities to follow certain presuit 9
procedures before businesses file an action for 10
business damages; authorizing businesses to recover 11
costs and fees in a specified manner and if certain 12
requirements are met; specifying that certain evidence 13
relating to mediations and negotiations is 14
inadmissible as evidence in certain proceedings; 15
requiring courts to consider certain factors and 16
follow specified guidance when assessing costs; 17
defining the term "benefits"; s pecifying requirements 18
for the courts in determining and awarding attorney 19
fees; requiring attorneys and businesses to submit 20
certain documentation relating to attorney fees; 21
requiring businesses claiming the right to recover 22
business damages to state the nature and extent of the 23
damages; requiring a jury to determine whether a 24
business is entitled to business damages and the 25
HB 569 2022
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F L O R I D A H O U S E O F R E P R E S E N T A T I V E S
amount of such damages unless the business elects to 26
have the business damages determined by the court; 27
providing applicability and c onstruction; providing an 28
effective date. 29
30
WHEREAS, the Legislature recognizes that the continued 31
economic growth and economic prosperity of this state are tied 32
to the protection of private property rights and the stability 33
of laws, ordinances, and ch arter provisions, and 34
WHEREAS, the Legislature recognizes that the protection of 35
private property rights and the stability of laws and local 36
rules and regulations affecting business activities encourage 37
investments by businesses in their real property, fa cilities, 38
operations, and workforces, and 39
WHEREAS, investments by businesses drive the economic 40
growth of a community, and 41
WHEREAS, the economic costs of local rules and regulations 42
that are primarily for the benefit of a county or municipality 43
as a whole should be borne by the county or municipality as a 44
whole, and 45
WHEREAS, the Legislature intends to require counties and 46
municipalities to compensate businesses for business damages 47
when an ordinance or a charter provision causes a business 48
significant economic harm, NOW, THEREFORE, 49
50
HB 569 2022
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F L O R I D A H O U S E O F R E P R E S E N T A T I V E S
Be It Enacted by the Legislature of the State of Florida: 51
52
Section 1. Section 70.91, Florida Statutes, is created to 53
read: 54
70.91 Compensation for business damages caused by county 55
or municipal ordinances or charter pro visions.— 56
(1) DEFINITION.—For purposes of this section, the term 57
"business records" includes, but is not limited to, copies of 58
federal income tax returns, federal income tax withholding 59
statements, federal miscellaneous income tax statements, state 60
sales tax returns, balance sheets, profit and loss statements, 61
state corporate income tax returns for the 3 years preceding the 62
enactment of or amendment to an ordinance or a charter, and 63
other records relied upon by a business to substantiate a claim 64
for business damages. 65
(2) CLAIMS FOR BUSINESS DAMAGES. — 66
(a) Except as provided in paragraph (b), a business that 67
has engaged in a lawful business in this state for at least 3 68
years may claim business damages from a county or municipality 69
if the county or munici pality enacts or amends an ordinance or a 70
charter that will cause a reduction of at least 15 percent of 71
the business' revenue or profit. 72
(b) A county or municipality is not liable for business 73
damages caused by: 74
1. An ordinance or a charter provision t hat is required to 75
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F L O R I D A H O U S E O F R E P R E S E N T A T I V E S
comply with state or federal law; 76
2. Emergency ordinances, declarations, or orders adopted 77
by a county or municipality under ss. 252.31 -252.60, the State 78
Emergency Management Act; 79
3. A temporary emergency ordinance enacted pursuant to s. 80
125.66 or s. 166.041 which remains in effect for no more than 90 81
days; or 82
4. An ordinance or a charter provision that increases 83
economic freedom. 84
(3) PRESUIT PROCEDURES. — 85
(a) At least 180 days before a business files an action 86
under this section against a county or municipality and within 87
180 days after the effective date of the relevant ordinance or 88
charter provision, the business must present a written offer to 89
settle the business' claim for business damages to the head of 90
the county or munici pality enacting or amending the ordinance. 91
The settlement offer must be made in good faith and include an 92
explanation of the nature, extent, and monetary amount of 93
damages and must be prepared by the owner, a certified public 94
accountant, or a business dama ge expert familiar with the nature 95
of the operations of the business. The business must also 96
provide copies of the business' records that substantiate the 97
offer to settle the business damage claim. If additional 98
information is needed beyond the data that m ay be obtained from 99
business records existing at the time of the offer, the business 100
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F L O R I D A H O U S E O F R E P R E S E N T A T I V E S
and county or municipality may agree on a schedule for the 101
submission of that information. 102
(b) Within 120 days after receipt of the good faith 103
business damage offer and accompanying business records, the 104
county or municipality must, by certified mail, accept or reject 105
the business' offer or make a counteroffer. Failure of the 106
county or municipality to respond to or reject the business 107
damage offer must be deemed to be a c ounteroffer of zero dollars 108
for purposes of calculating attorney fees under subsection (5) 109
solely based upon the benefits achieved for the business. 110
(c) If the business and the county or municipality reach a 111
settlement before a lawsuit is filed, the busi ness that settles 112
the claim for business damages in lieu of litigation is entitled 113
to recover costs in the same manner as provided in subsection 114
(4) and attorney fees in the same manner as provided in 115
subsection (5), more specifically as follows: 116
1. If the business recovers business damages based upon 117
the county or municipality accepting the business' initial offer 118
or the business accepting the county's or municipality's initial 119
counteroffer, attorney fees must be calculated in accordance 120
with paragraphs (5)(c), (d), (e), and (f) for the attorney's 121
time required to present the business' good faith offer. 122
Otherwise, attorney fees for the award of business damages must 123
be calculated as provided in paragraphs (5)(a) and (b), based 124
upon the difference between the final judgment or settlement of 125
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business damages and the county's or municipality's counteroffer 126
to the business owner's offer. 127
2. Presuit costs must be presented, calculated, and 128
awarded in the same manner as provided in subsection (4), after 129
the business owner submits to the county or municipality all 130
business damage reports or other work products for which 131
recovery is sought and upon the county or municipality paying 132
any amounts due for business damages or upon final judgment. 133
3. If the parties c annot agree on the amount of costs and 134
attorney fees to be paid by the county or municipality, the 135
business owner may file a complaint in the circuit court in the 136
county in which the business is located to recover attorney fees 137
and costs. If a business fil es a complaint for business damages, 138
it must be filed within 1 year after the effective date of the 139
relevant ordinance, ordinance amendment, or charter provision. 140
(d) Evidence of negotiations or of any written or oral 141
statements used in mediation or nego tiations between the parties 142
under this section is inadmissible in any proceeding for 143
business damages, except in a proceeding to determine reasonable 144
costs and attorney fees. 145
(4) COSTS.— 146
(a) If a business recovers business damages, the county or 147
municipality must pay the business' reasonable costs, including 148
a reasonable accountant's fee. Prejudgment interest may not be 149
paid on costs or attorney fees. 150
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(b) At least 30 days before a hearing to assess costs 151
under this subsection, the attorney for the bu siness shall 152
submit to the county or municipality for each expert witness the 153
expert witness' complete time records and a detailed statement 154
of services rendered by date, nature of services performed, time 155
spent performing the services, and costs incurred and a copy of 156
any fee agreement that may exist between the expert witness and 157
the business or the business' attorney. 158
(c) In assessing costs, the court shall consider all 159
factors relevant to the reasonableness of the costs, including, 160
but not limited to, the fees paid to similar experts retained in 161
the case by the county or municipality or other parties and the 162
reasonable costs of similar services by similarly qualified 163
persons. 164
(d) In assessing costs to be paid by the county or 165
municipality, the court shall be guided by the amount the 166
business would ordinarily have been expected to pay for the 167
services rendered if the county or municipality was not 168
responsible for the costs. 169
(e) The court shall make specific findings that justify 170
each sum awarded as a n expert witness fee. 171
(5) ATTORNEY FEES.— 172
(a) As used in this subsection, the term "benefits" means 173
the difference, exclusive of interest, between the final 174
judgment or settlement and the last written offer made by the 175
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county or municipality before the business hires an attorney. If 176
the county or municipality does not make a written settlement 177
offer before the business hires an attorney, benefits must be 178
measured from the first written offer after the attorney is 179
hired. 180
(b)1. In determining attorney f ees, if business records 181
kept by the owner in the ordinary course of business were 182
provided to the county or municipality to substantiate the 183
business damage offer made by the business, benefits for amounts 184
awarded for business damages must be based upon t he difference 185
between the final judgment or settlement and the written 186
counteroffer made by the county or municipality. 187
2. In determining attorney fees, if existing business 188
records kept by the owner in the ordinary course of business 189
were not provided to the county or municipality to substantiate 190
the business damage offer made by the business and those records 191
that were not provided are later deemed material to the 192
determination of business damages, benefits for amounts awarded 193
for business damages must be based upon the difference between 194
the final judgment or settlement and the first written 195
counteroffer made by the county or municipality within 90 days 196
after the receipt of the business records previously not 197
provided to the county or municipality. 198
3. The court may also consider nonmonetary benefits 199
obtained for the business through the efforts of the attorney, 200
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to the extent such nonmonetary benefits are specifically 201
identified by the court and can, within a reasonable degree of 202
certainty, be quantifie d. 203
4. Attorney fees based upon benefits achieved shall be 204
awarded in accordance with the following schedule: 205
a. Thirty-three percent of any benefit up to $250,000; 206
plus 207
b. Twenty-five percent of any portion of the benefit 208
between $250,000 and $1 mill ion; plus 209
c. Twenty percent of any portion of the benefit exceeding 210
$1 million. 211
(c) In assessing attorney fees in a claim for business 212
damages, when not otherwise provided for, the court shall 213
consider: 214
1. The novelty, difficulty, and importance of t he 215
questions involved. 216
2. The skill employed by the attorney in conducting the 217
case. 218
3. The amount of money involved. 219
4. The responsibility incurred and fulfilled by the 220
attorney. 221
5. The attorney's time and labor reasonably required to 222
adequately represent the client in relation to the benefits 223
resulting to the client. 224
6. The fee, or rate of fee, customarily charged for legal 225
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F L O R I D A H O U S E O F R E P R E S E N T A T I V E S
services of a comparable or similar nature. 226
(d) In determining the amount of attorney fees to be paid 227
by the county or municipality under paragraph (c), the court 228
shall be guided by the fees the business would ordinarily be 229
expected to pay for these services if the county or municipality 230
was not responsible for the payment of those fees. 231
(e) At least 30 days before a hear ing to assess attorney 232
fees under paragraph (c), the attorney for the business shall 233
submit to the county or municipality and to the court complete 234
time records and a detailed statement of services rendered by 235
date, nature of services performed, time spent performing the 236
services, and costs incurred. 237
(f) The business shall provide to the court a copy of any 238
fee agreement that may exist between the business and its 239
attorney, and the court must reduce the amount of attorney fees 240
to be paid by the business b y the amount of any attorney fees 241
awarded by the court. 242
(6) TRIAL.—A business claiming the right to recover 243
business damages must state in its complaint the nature and 244
extent of those damages. At trial, a jury shall determine 245
whether a business is entitl ed to business damages and the 246
amount of damages, if any. However, the business may elect to 247
have business damages determined by the court. 248
(7) APPLICATION; CONSTRUCTION. —This section does not apply 249
to a business that may claim business damages under cha pter 73 250
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F L O R I D A H O U S E O F R E P R E S E N T A T I V E S
and may not be construed to authorize double recoveries. 251
Section 2. This act applies to county and municipal 252
ordinances or charter provisions enacted or amended on or after 253
July 1, 2022. 254
Section 3. This act shall take effect July 1, 2022. 255