CS/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"; specifying 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
CS/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 construction; 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 privat e property rights and the stability 33
of laws, ordinances, and charter 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, facilities, 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
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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 provisions. — 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 may 67
claim business damages from a county or municipality if: 68
1. The county or municipali ty enacts or amends an 69
ordinance or a charter that has or will cause a reduction of at 70
least 15 percent of the business' profit; and 71
2. The business has engaged in lawful business in this 72
state for the 3 years preceding the enactment of or amendment to 73
the ordinance or charter. 74
(b) A county or municipality is not liable for business 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
damages caused by: 76
1. An ordinance or a charter provision that is required to 77
comply with state or federal law; 78
2. Emergency ordinances, declarations, or orders adopted 79
by a county or municipality under ss. 252.31 -252.60, the State 80
Emergency Management Act; 81
3. A temporary emergency ordinance enacted pursuant to s. 82
125.66 or s. 166.041 which remains in effect for no more than 90 83
days; 84
4. An ordinance or charter provi sion enacted to implement: 85
a. Part II of chapter 163, which relates to growth policy, 86
county and municipal planning, and land development regulation; 87
b. Section 553.73, which relates to the Florida Building 88
Code; or 89
c. Section 633.202, which relates to the Florida Fire 90
Prevention Code; 91
5. An ordinance or charter provision required to implement 92
a contract or agreement, including, but not limited to, any 93
federal, state, local or private grant, or other financial 94
assistance accepted by a county govern ment; 95
6. An ordinance or charter provision relating to the 96
issuance or refinancing of debt; or 97
7. An ordinance or charter provision related to the 98
adoption of a budget or budget amendment. 99
(3) PRESUIT PROCEDURES. — 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
(a) At least 180 days before a bus iness files an action 101
under this section against a county or municipality and within 102
180 days after the effective date of the relevant ordinance or 103
charter provision, the business must present a written offer to 104
settle the business' claim for business dama ges to the head of 105
the county or municipality enacting or amending the ordinance. 106
The settlement offer must be made in good faith and include an 107
explanation of the nature, extent, and monetary amount of 108
damages and must be prepared by the owner, a certifie d public 109
accountant, or a business damage expert familiar with the nature 110
of the operations of the business. The business must also 111
provide copies of the business' records that substantiate the 112
offer to settle the business damage claim. If additional 113
information is needed beyond the data that may be obtained from 114
business records existing at the time of the offer, the business 115
and county or municipality may agree on a schedule for the 116
submission of that information. 117
(b) Within 120 days after receipt of th e good faith 118
business damage offer and accompanying business records, the 119
county or municipality must, by certified mail, accept or reject 120
the business' offer or make a counteroffer. Failure of the 121
county or municipality to respond to or reject the busines s 122
damage offer must be deemed to be a counteroffer of zero dollars 123
for purposes of calculating attorney fees under subsection (5) 124
solely based upon the benefits achieved for the business. 125
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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
(c) If the business and the county or municipality reach a 126
settlement before a lawsuit is filed, the business that settles 127
the claim for business damages in lieu of litigation is entitled 128
to recover costs in the same manner as provided in subsection 129
(4) and attorney fees in the same manner as provided in 130
subsection (5), more specifically as follows: 131
1. If the business recovers business damages based upon 132
the county or municipality accepting the business' initial offer 133
or the business accepting the county's or municipality's initial 134
counteroffer, attorney fees must be ca lculated in accordance 135
with paragraphs (5)(c), (d), (e), and (f) for the attorney's 136
time required to present the business' good faith offer. 137
Otherwise, attorney fees for the award of business damages must 138
be calculated as provided in paragraphs (5)(a) and (b), based 139
upon the difference between the final judgment or settlement of 140
business damages and the county's or municipality's counteroffer 141
to the business owner's offer. 142
2. Presuit costs must be presented, calculated, and 143
awarded in the same manner as p rovided in subsection (4), after 144
the business owner submits to the county or municipality all 145
business damage reports or other work products for which 146
recovery is sought and upon the county or municipality paying 147
any amounts due for business damages or upo n final judgment. 148
3. If the parties cannot agree on the amount of costs and 149
attorney fees to be paid by the county or municipality, the 150
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business owner may file a complaint in the circuit court in the 151
county in which the business is located to recover att orney fees 152
and costs. If a business files a complaint for business damages, 153
it must be filed within 1 year after the effective date of the 154
relevant ordinance, ordinance amendment, or charter provision. 155
(d) Evidence of negotiations or of any written or or al 156
statements used in mediation or negotiations between the parties 157
under this section is inadmissible in any proceeding for 158
business damages, except in a proceeding to determine reasonable 159
costs and attorney fees. 160
(4) COSTS.— 161
(a) If a business recover s business damages, the county or 162
municipality must pay the business' reasonable costs, including 163
a reasonable accountant's fee. Prejudgment interest may not be 164
paid on costs or attorney fees. 165
(b) At least 30 days before a hearing to assess costs 166
under this subsection, the attorney for the business shall 167
submit to the county or municipality for each expert witness the 168
expert witness' complete time records and a detailed statement 169
of services rendered by date, nature of services performed, time 170
spent performing the services, and costs incurred and a copy of 171
any fee agreement that may exist between the expert witness and 172
the business or the business' attorney. 173
(c) In assessing costs, the court shall consider all 174
factors relevant to the reasonableness of th e costs, including, 175
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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
but not limited to, the fees paid to similar experts retained in 176
the case by the county or municipality or other parties and the 177
reasonable costs of similar services by similarly qualified 178
persons. 179
(d) In assessing costs to be paid by the county or 180
municipality, the court shall be guided by the amount the 181
business would ordinarily have been expected to pay for the 182
services rendered if the county or municipality was not 183
responsible for the costs. 184
(e) The court shall make specific find ings that justify 185
each sum awarded as an expert witness fee. 186
(5) ATTORNEY FEES.— 187
(a) As used in this subsection, the term "benefits" means 188
the difference, exclusive of interest, between the final 189
judgment or settlement and the last written offer made b y the 190
county or municipality before the business hires an attorney. If 191
the county or municipality does not make a written settlement 192
offer before the business hires an attorney, benefits must be 193
measured from the first written offer after the attorney is 194
hired. 195
(b)1. In determining attorney fees, if business records 196
kept by the owner in the ordinary course of business were 197
provided to the county or municipality to substantiate the 198
business damage offer made by the business, benefits for amounts 199
awarded for business damages must be based upon the difference 200
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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
between the final judgment or settlement and the written 201
counteroffer made by the county or municipality. 202
2. In determining attorney fees, if existing business 203
records kept by the owner in the ordinary course of business 204
were not provided to the county or municipality to substantiate 205
the business damage offer made by the business and those records 206
that were not provided are later deemed material to the 207
determination of business damages, benefits for amo unts awarded 208
for business damages must be based upon the difference between 209
the final judgment or settlement and the first written 210
counteroffer made by the county or municipality within 90 days 211
after the receipt of the business records previously not 212
provided to the county or municipality. 213
3. The court may also consider nonmonetary benefits 214
obtained for the business through the efforts of the attorney, 215
to the extent such nonmonetary benefits are specifically 216
identified by the court and can, within a reaso nable degree of 217
certainty, be quantified. 218
4. Attorney fees based upon benefits achieved shall be 219
awarded in accordance with the following schedule: 220
a. Thirty-three percent of any benefit up to $250,000; 221
plus 222
b. Twenty-five percent of any portion of t he benefit 223
between $250,000 and $1 million; plus 224
c. Twenty percent of any portion of the benefit exceeding 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
$1 million. 226
(c) In assessing attorney fees in a claim for business 227
damages, when not otherwise provided for, the court shall 228
consider: 229
1. The novelty, difficulty, and importance of the 230
questions involved. 231
2. The skill employed by the attorney in conducting the 232
case. 233
3. The amount of money involved. 234
4. The responsibility incurred and fulfilled by the 235
attorney. 236
5. The attorney's time and l abor reasonably required to 237
adequately represent the client in relation to the benefits 238
resulting to the client. 239
6. The fee, or rate of fee, customarily charged for legal 240
services of a comparable or similar nature. 241
(d) In determining the amount of atto rney fees to be paid 242
by the county or municipality under paragraph (c), the court 243
shall be guided by the fees the business would ordinarily be 244
expected to pay for these services if the county or municipality 245
was not responsible for the payment of those fee s. 246
(e) At least 30 days before a hearing to assess attorney 247
fees under paragraph (c), the attorney for the business shall 248
submit to the county or municipality and to the court complete 249
time records and a detailed statement of services rendered by 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
date, nature of services performed, time spent performing the 251
services, and costs incurred. 252
(f) The business shall provide to the court a copy of any 253
fee agreement that may exist between the business and its 254
attorney, and the court must reduce the amount of att orney fees 255
to be paid by the business by the amount of any attorney fees 256
awarded by the court. 257
(6) TRIAL.—A business claiming the right to recover 258
business damages must state in its complaint the nature and 259
extent of those damages. At trial, a jury shall determine 260
whether a business is entitled to business damages and the 261
amount of damages, if any. However, the business may elect to 262
have business damages determined by the court. 263
(7) APPLICATION; CONSTRUCTION. —This section does not apply 264
to a business that may claim business damages under chapter 73 265
and may not be construed to authorize double recoveries. 266
Section 2. This act applies to county and municipal 267
ordinances or charter provisions enacted or amended on or after 268
July 1, 2022. 269
Section 3. This act shall take effect July 1, 2022. 270