FL
Florida House Bill H0569

Florida 2022 Regular Session

Florida House Bill H0569 Compare Versions

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1010 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
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1414 A bill to be entitled 1
15-An act relating to the Local Business Protection Act; 2
16-providing a short title; creating s. 70.91, F.S.; 3
17-defining the term "business records"; authorizing 4
18-certain businesses to claim business damages from a 5
19-county or municipality if the county or municipality 6
20-enacts or amends certain ordinances or charter 7
21-provisions; limiting the amount of business damages 8
22-that may be recovered; specifying ordinances and 9
23-charter provisions that do not result in liability for 10
24-business damages; requiring businesses and counties or 11
25-municipalities to follow certain presuit procedures 12
26-before businesses file an action for business damages; 13
27-authorizing courts to award reasonable attorney f ees 14
28-and costs to prevailing parties; specifying that 15
29-counties and municipalities are not liable for damages 16
30-if they take certain actions within a specified 17
31-timeframe; authorizing governing bodies of 18
32-municipalities to provide specified relief, 19
33-notwithstanding certain ordinances and charter 20
34-provisions; providing applicability and construction; 21
35-providing an effective date. 22
36- 23
37- WHEREAS, the Legislature recognizes that the continued 24
38-economic growth and economic prosperity of this state are tied 25
15+An act relating to business damages caused by local 2
16+governments; creating s. 70.91, F.S.; defining the 3
17+term "business records"; authorizing certain 4
18+businesses to claim business damages from a county or 5
19+municipality if the county or municipality enacts or 6
20+amends certain ordinances or charter provisions; 7
21+providing exceptions; requiring businesses and 8
22+counties or municipalities to follow certain presuit 9
23+procedures before businesses file an action for 10
24+business damages; authorizing businesses to recover 11
25+costs and fees in a specified manner and if certain 12
26+requirements are met; specifying that certain evidence 13
27+relating to mediations and negotiations is 14
28+inadmissible as evidence in certain proceedings; 15
29+requiring courts to consider certain factors and 16
30+follow specified guidance when assessing costs; 17
31+defining the term "benefits"; specifying requirements 18
32+for the courts in determining and awarding attorney 19
33+fees; requiring attorneys and businesses to submit 20
34+certain documentation relating to attorney fees; 21
35+requiring businesses claiming the right to recover 22
36+business damages to state the nature and extent of the 23
37+damages; requiring a jury to determine whether a 24
38+business is entitled to business damages and the 25
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4747 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
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51-to the protection of private property rights and the stability 26
52-of laws, ordinances, and charter provisions, and 27
53- WHEREAS, the Legislature recognizes that the protection of 28
54-private property rights and the stability of laws and local 29
55-rules and regulations affecting busines s activities encourage 30
56-investments by businesses in their real property, facilities, 31
57-operations, and workforces, and 32
58- WHEREAS, investments by businesses drive the economic 33
59-growth of a community, and 34
60- WHEREAS, the economic costs of local rules and regulatio ns 35
61-that are primarily for the benefit of a county or municipality 36
62-as a whole should be borne by the county or municipality as a 37
63-whole, and 38
64- WHEREAS, the Legislature intends to require counties and 39
65-municipalities to compensate businesses for business damage s 40
66-when an ordinance or a charter provision causes a business 41
67-significant economic harm, NOW, THEREFORE, 42
68- 43
69-Be It Enacted by the Legislature of the State of Florida: 44
70- 45
71- Section 1. This act may be cited as the "Local Business 46
72-Protection Act." 47
73- Section 2. Section 70.91, Florida Statutes, is created to 48
74-read: 49
75- 70.91 Compensation for business damages caused by county 50
51+amount of such damages unless the business elects to 26
52+have the business damages determined by the court; 27
53+providing applicability and construction; providing an 28
54+effective date. 29
55+ 30
56+ WHEREAS, the Legislature recognizes that the continued 31
57+economic growth and economic prosperity of this state are tied 32
58+to the protection of privat e property rights and the stability 33
59+of laws, ordinances, and charter provisions, and 34
60+ WHEREAS, the Legislature recognizes that the protection of 35
61+private property rights and the stability of laws and local 36
62+rules and regulations affecting business activities encourage 37
63+investments by businesses in their real property, facilities, 38
64+operations, and workforces, and 39
65+ WHEREAS, investments by businesses drive the economic 40
66+growth of a community, and 41
67+ WHEREAS, the economic costs of local rules and regulations 42
68+that are primarily for the benefit of a county or municipality 43
69+as a whole should be borne by the county or municipality as a 44
70+whole, and 45
71+ WHEREAS, the Legislature intends to require counties and 46
72+municipalities to compensate businesses for business damages 47
73+when an ordinance or a charter provision causes a business 48
74+significant economic harm, NOW, THEREFORE, 49
75+ 50
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8484 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
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88-or municipal ordinances or charter provisions. — 51
89- (1) DEFINITION.—For purposes of this section, the term 52
90-"business records" includes, but is n ot limited to, copies of 53
91-federal income tax returns, federal income tax withholding 54
92-statements, federal miscellaneous income tax statements, state 55
93-sales tax returns, balance sheets, profit and loss statements, 56
94-state corporate income tax returns for the 3 y ears preceding the 57
95-enactment of or amendment to an ordinance or a charter, and 58
96-other records relied upon by a business to substantiate a claim 59
97-for business damages. 60
98- (2) CLAIMS FOR BUSINESS DAMAGES. — 61
99- (a) Except as provided in paragraph (c), a private, f or-62
100-profit business may claim business damages from a county or 63
101-municipality if: 64
102- 1. The county or municipality enacts or amends an 65
103-ordinance or a charter provision that has or will cause a 66
104-reduction of at least 15 percent of the business' profit as 67
105-applied on a per location basis of a business operated within 68
106-the jurisdiction; and 69
107- 2. The business has engaged in lawful business in the 70
108-jurisdiction for the 3 years preceding the enactment of or 71
109-amendment to the ordinance or charter. 72
110- (b) The amount of business damages may be established by 73
111-any reasonable method, but the amount of business damages that 74
112-may be recovered by a business may not exceed the present value 75
88+Be It Enacted by the Legislature of the State of Florida: 51
89+ 52
90+ Section 1. Section 70.91, Florida Statutes, is created to 53
91+read: 54
92+ 70.91 Compensation for business damages caused by county 55
93+or municipal ordinances or charter provisions. — 56
94+ (1) DEFINITION.—For purposes of this section, the term 57
95+"business records" includes, but is not limited to, copies of 58
96+federal income tax returns, federal income tax withholding 59
97+statements, federal miscellaneous income tax statements, state 60
98+sales tax returns, balance sheets, profit and loss statements, 61
99+state corporate income tax returns for the 3 years preceding the 62
100+enactment of or amendment to an ordinance or a charter, and 63
101+other records relied upon by a business to substantiate a claim 64
102+for business damages. 65
103+ (2) CLAIMS FOR BUSINESS DAMAGES. — 66
104+ (a) Except as provided in paragraph (b), a business may 67
105+claim business damages from a county or municipality if: 68
106+ 1. The county or municipali ty enacts or amends an 69
107+ordinance or a charter that has or will cause a reduction of at 70
108+least 15 percent of the business' profit; and 71
109+ 2. The business has engaged in lawful business in this 72
110+state for the 3 years preceding the enactment of or amendment to 73
111+the ordinance or charter. 74
112+ (b) A county or municipality is not liable for business 75
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121121 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
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125-of the business' future lost profits for the lesser of 7 years 76
126-or the number of years th e business had been in operation in the 77
127-jurisdiction before the ordinance or charter provision was 78
128-enacted. 79
129- (c) A county or municipality is not liable for business 80
130-damages caused by: 81
131- 1. An ordinance or charter provision that is required to 82
132-comply with, or is expressly authorized by, state or federal 83
133-law; 84
134- 2. Emergency ordinances, declarations, or orders adopted 85
135-by a county or municipality under ss. 252.31 -252.60, the State 86
136-Emergency Management Act; 87
137- 3. A temporary emergency ordinance enacted pursuant to s. 88
138-125.66 or s. 166.041 which remains in effect for no more than 90 89
139-days; 90
140- 4. An ordinance or charter provision enacted to implement: 91
141- a. Part II of chapter 163, relating to growth policy, 92
142-county and municipal planning, and land development regulation , 93
143-including zoning, development orders, and development permits; 94
144- b. Section 553.73, relating to the Florida Building Code; 95
145-or 96
146- c. Section 633.202, relating to the Florida Fire 97
147-Prevention Code; 98
148- 5. An ordinance or charter provision required to implement 99
149-a contract or agreement, including, but not limited to, any 100
125+damages caused by: 76
126+ 1. An ordinance or a charter provision that is required to 77
127+comply with state or federal law; 78
128+ 2. Emergency ordinances, declarations, or orders adopted 79
129+by a county or municipality under ss. 252.31 -252.60, the State 80
130+Emergency Management Act; 81
131+ 3. A temporary emergency ordinance enacted pursuant to s. 82
132+125.66 or s. 166.041 which remains in effect for no more than 90 83
133+days; 84
134+ 4. An ordinance or charter provi sion enacted to implement: 85
135+ a. Part II of chapter 163, which relates to growth policy, 86
136+county and municipal planning, and land development regulation; 87
137+ b. Section 553.73, which relates to the Florida Building 88
138+Code; or 89
139+ c. Section 633.202, which relates to the Florida Fire 90
140+Prevention Code; 91
141+ 5. An ordinance or charter provision required to implement 92
142+a contract or agreement, including, but not limited to, any 93
143+federal, state, local or private grant, or other financial 94
144+assistance accepted by a county govern ment; 95
145+ 6. An ordinance or charter provision relating to the 96
146+issuance or refinancing of debt; or 97
147+ 7. An ordinance or charter provision related to the 98
148+adoption of a budget or budget amendment. 99
149+ (3) PRESUIT PROCEDURES. — 100
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158158 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
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162-federal, state, local, or private grant, or other financial 101
163-assistance accepted by a county or municipal government; 102
164- 6. An ordinance or charter provision relating to the 103
165-issuance or refinancing of debt; 104
166- 7. An ordinance or charter provision relating to the 105
167-adoption of a budget or budget amendment, including revenue 106
168-sources necessary to fund the budget; 107
169- 8. An ordinance or charter provision relating to 108
170-procurement; or 109
171- 9. An ordinance or chart er provision intended to promote, 110
172-enable, or facilitate economic competition. 111
173- (d) An amendment to an ordinance or charter provision 112
174-after the effective date of this act gives rise to a claim under 113
175-this section only to the extent that the application of t he 114
176-amendatory language is the cause of the claimed impact on a 115
177-business apart from the ordinance or charter provision being 116
178-amended. 117
179- (3) PRESUIT PROCEDURES; ATTORNEY FEES AND COSTS. — 118
180- (a) At least 180 days before a business files an action 119
181-under this section against a county or municipality and within 120
182-180 days after the effective date of the relevant ordinance or 121
183-charter provision, the business must present a written offer to 122
184-settle the business' claim for business damages to the head of 123
185-the county or municipality enacting or amending the ordinance or 124
186-charter provision. The settlement offer must be made in good 125
162+ (a) At least 180 days before a bus iness files an action 101
163+under this section against a county or municipality and within 102
164+180 days after the effective date of the relevant ordinance or 103
165+charter provision, the business must present a written offer to 104
166+settle the business' claim for business dama ges to the head of 105
167+the county or municipality enacting or amending the ordinance. 106
168+The settlement offer must be made in good faith and include an 107
169+explanation of the nature, extent, and monetary amount of 108
170+damages and must be prepared by the owner, a certifie d public 109
171+accountant, or a business damage expert familiar with the nature 110
172+of the operations of the business. The business must also 111
173+provide copies of the business' records that substantiate the 112
174+offer to settle the business damage claim. If additional 113
175+information is needed beyond the data that may be obtained from 114
176+business records existing at the time of the offer, the business 115
177+and county or municipality may agree on a schedule for the 116
178+submission of that information. 117
179+ (b) Within 120 days after receipt of th e good faith 118
180+business damage offer and accompanying business records, the 119
181+county or municipality must, by certified mail, accept or reject 120
182+the business' offer or make a counteroffer. Failure of the 121
183+county or municipality to respond to or reject the busines s 122
184+damage offer must be deemed to be a counteroffer of zero dollars 123
185+for purposes of calculating attorney fees under subsection (5) 124
186+solely based upon the benefits achieved for the business. 125
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195195 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
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199-faith and include an explanation of the nature, extent, and 126
200-monetary amount of damages and must be prepared by the owner, a 127
201-certified public accou ntant, or a business damage expert 128
202-familiar with the nature of the operations of the business. The 129
203-business must also provide copies of the business' records that 130
204-substantiate the offer to settle the business damage claim. If 131
205-additional information is need ed beyond the data that may be 132
206-obtained from business records existing at the time of the 133
207-offer, the business and county or municipality may agree on a 134
208-schedule for the submission of that information. 135
209- (b) Within 120 days after receipt of the good faith 136
210-business damage offer and accompanying business records, the 137
211-county or municipality must, by certified mail, accept or reject 138
212-the business' offer or make a counteroffer, which may include an 139
213-offer to grant a waiver to the application of the ordinance or 140
214-charter provision. 141
215- (c) If a business files an action for business damages, it 142
216-must be filed within 1 year after the effective date of the 143
217-relevant ordinance, ordinance amendment, or charter provision. 144
218- (d) Evidence of negotiations or of any written or oral 145
219-statements used in mediation or negotiations between the parties 146
220-under this section is inadmissible in any proceeding for 147
221-business damages, except in a proceeding to determine reasonable 148
222-costs and attorney fees. 149
223- (e) In an action for business damages, th e court may award 150
199+ (c) If the business and the county or municipality reach a 126
200+settlement before a lawsuit is filed, the business that settles 127
201+the claim for business damages in lieu of litigation is entitled 128
202+to recover costs in the same manner as provided in subsection 129
203+(4) and attorney fees in the same manner as provided in 130
204+subsection (5), more specifically as follows: 131
205+ 1. If the business recovers business damages based upon 132
206+the county or municipality accepting the business' initial offer 133
207+or the business accepting the county's or municipality's initial 134
208+counteroffer, attorney fees must be ca lculated in accordance 135
209+with paragraphs (5)(c), (d), (e), and (f) for the attorney's 136
210+time required to present the business' good faith offer. 137
211+Otherwise, attorney fees for the award of business damages must 138
212+be calculated as provided in paragraphs (5)(a) and (b), based 139
213+upon the difference between the final judgment or settlement of 140
214+business damages and the county's or municipality's counteroffer 141
215+to the business owner's offer. 142
216+ 2. Presuit costs must be presented, calculated, and 143
217+awarded in the same manner as p rovided in subsection (4), after 144
218+the business owner submits to the county or municipality all 145
219+business damage reports or other work products for which 146
220+recovery is sought and upon the county or municipality paying 147
221+any amounts due for business damages or upo n final judgment. 148
222+ 3. If the parties cannot agree on the amount of costs and 149
223+attorney fees to be paid by the county or municipality, the 150
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232232 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
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236-reasonable attorney fees and costs to the prevailing party. 151
237- (4) OPPORTUNITY TO CURE. —There is no liability under this 152
238-section for a county or municipality that, within the 120 -day 153
239-timeframe provided for in paragraph (3)(b): 154
240- (a) Repeals the ordinance or charter provision that gave 155
241-rise to the business' claim; 156
242- (b) Amends the ordinance or charter provision that gave 157
243-rise to the business' claim in a manner that returns the 158
244-ordinance or charter provision to its form in existence before 159
245-the business' claim arose or in a manner that avoids causing a 160
246-reduction of at least 15 percent of the business' profit as 161
247-applied on a per location basis within the jurisdiction; 162
248- (c) Publishes notice of its intent to repeal or amend the 163
249-ordinance that gave rise to the business' claim and, within 30 164
250-days after publication of the notice, amends the ordinance in a 165
251-manner that returns the ordinance to its form in existence 166
252-before the business' claim arose or in a manner that avoids 167
253-causing a reduction of at le ast 15 percent of the business' 168
254-profit as applied on a per location basis within the 169
255-jurisdiction, or repeals the ordinance; 170
256- (d) Grants a waiver of the ordinance or charter provision 171
257-to a business submitting a claim for business damages; or 172
258- (e) With respect to a charter provision, the county 173
259-provides notice of its intent to amend or repeal the charter 174
260-provision that is the basis of the business damage claim and the 175
236+business owner may file a complaint in the circuit court in the 151
237+county in which the business is located to recover att orney fees 152
238+and costs. If a business files a complaint for business damages, 153
239+it must be filed within 1 year after the effective date of the 154
240+relevant ordinance, ordinance amendment, or charter provision. 155
241+ (d) Evidence of negotiations or of any written or or al 156
242+statements used in mediation or negotiations between the parties 157
243+under this section is inadmissible in any proceeding for 158
244+business damages, except in a proceeding to determine reasonable 159
245+costs and attorney fees. 160
246+ (4) COSTS.— 161
247+ (a) If a business recover s business damages, the county or 162
248+municipality must pay the business' reasonable costs, including 163
249+a reasonable accountant's fee. Prejudgment interest may not be 164
250+paid on costs or attorney fees. 165
251+ (b) At least 30 days before a hearing to assess costs 166
252+under this subsection, the attorney for the business shall 167
253+submit to the county or municipality for each expert witness the 168
254+expert witness' complete time records and a detailed statement 169
255+of services rendered by date, nature of services performed, time 170
256+spent performing the services, and costs incurred and a copy of 171
257+any fee agreement that may exist between the expert witness and 172
258+the business or the business' attorney. 173
259+ (c) In assessing costs, the court shall consider all 174
260+factors relevant to the reasonableness of th e costs, including, 175
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269269 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
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273-charter provision is amended or repealed by the voters at an 176
274-election or special election that occurs within 90 days after 177
275-publication of the notice. 178
276- 179
277-The governing body of a municipality may provide relief under 180
278-this subsection notwithstanding any ordinance or charter 181
279-provision to the contrary. 182
280- (5) APPLICATION; CONSTRUCTION. —This section does not apply 183
281-to a business that may claim business damages under chapter 73 184
282-and may not be construed to authorize double recoveries. 185
283- Section 3. This act applies to county and municipal 186
284-ordinances or charter provisions enacted or amended on or after 187
285-the effective date of this act. 188
286- Section 4. This act shall take effect upon becoming a law. 189
273+but not limited to, the fees paid to similar experts retained in 176
274+the case by the county or municipality or other parties and the 177
275+reasonable costs of similar services by similarly qualified 178
276+persons. 179
277+ (d) In assessing costs to be paid by the county or 180
278+municipality, the court shall be guided by the amount the 181
279+business would ordinarily have been expected to pay for the 182
280+services rendered if the county or municipality was not 183
281+responsible for the costs. 184
282+ (e) The court shall make specific find ings that justify 185
283+each sum awarded as an expert witness fee. 186
284+ (5) ATTORNEY FEES.— 187
285+ (a) As used in this subsection, the term "benefits" means 188
286+the difference, exclusive of interest, between the final 189
287+judgment or settlement and the last written offer made b y the 190
288+county or municipality before the business hires an attorney. If 191
289+the county or municipality does not make a written settlement 192
290+offer before the business hires an attorney, benefits must be 193
291+measured from the first written offer after the attorney is 194
292+hired. 195
293+ (b)1. In determining attorney fees, if business records 196
294+kept by the owner in the ordinary course of business were 197
295+provided to the county or municipality to substantiate the 198
296+business damage offer made by the business, benefits for amounts 199
297+awarded for business damages must be based upon the difference 200
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310+between the final judgment or settlement and the written 201
311+counteroffer made by the county or municipality. 202
312+ 2. In determining attorney fees, if existing business 203
313+records kept by the owner in the ordinary course of business 204
314+were not provided to the county or municipality to substantiate 205
315+the business damage offer made by the business and those records 206
316+that were not provided are later deemed material to the 207
317+determination of business damages, benefits for amo unts awarded 208
318+for business damages must be based upon the difference between 209
319+the final judgment or settlement and the first written 210
320+counteroffer made by the county or municipality within 90 days 211
321+after the receipt of the business records previously not 212
322+provided to the county or municipality. 213
323+ 3. The court may also consider nonmonetary benefits 214
324+obtained for the business through the efforts of the attorney, 215
325+to the extent such nonmonetary benefits are specifically 216
326+identified by the court and can, within a reaso nable degree of 217
327+certainty, be quantified. 218
328+ 4. Attorney fees based upon benefits achieved shall be 219
329+awarded in accordance with the following schedule: 220
330+ a. Thirty-three percent of any benefit up to $250,000; 221
331+plus 222
332+ b. Twenty-five percent of any portion of t he benefit 223
333+between $250,000 and $1 million; plus 224
334+ c. Twenty percent of any portion of the benefit exceeding 225
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347+$1 million. 226
348+ (c) In assessing attorney fees in a claim for business 227
349+damages, when not otherwise provided for, the court shall 228
350+consider: 229
351+ 1. The novelty, difficulty, and importance of the 230
352+questions involved. 231
353+ 2. The skill employed by the attorney in conducting the 232
354+case. 233
355+ 3. The amount of money involved. 234
356+ 4. The responsibility incurred and fulfilled by the 235
357+attorney. 236
358+ 5. The attorney's time and l abor reasonably required to 237
359+adequately represent the client in relation to the benefits 238
360+resulting to the client. 239
361+ 6. The fee, or rate of fee, customarily charged for legal 240
362+services of a comparable or similar nature. 241
363+ (d) In determining the amount of atto rney fees to be paid 242
364+by the county or municipality under paragraph (c), the court 243
365+shall be guided by the fees the business would ordinarily be 244
366+expected to pay for these services if the county or municipality 245
367+was not responsible for the payment of those fee s. 246
368+ (e) At least 30 days before a hearing to assess attorney 247
369+fees under paragraph (c), the attorney for the business shall 248
370+submit to the county or municipality and to the court complete 249
371+time records and a detailed statement of services rendered by 250
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384+date, nature of services performed, time spent performing the 251
385+services, and costs incurred. 252
386+ (f) The business shall provide to the court a copy of any 253
387+fee agreement that may exist between the business and its 254
388+attorney, and the court must reduce the amount of att orney fees 255
389+to be paid by the business by the amount of any attorney fees 256
390+awarded by the court. 257
391+ (6) TRIAL.—A business claiming the right to recover 258
392+business damages must state in its complaint the nature and 259
393+extent of those damages. At trial, a jury shall determine 260
394+whether a business is entitled to business damages and the 261
395+amount of damages, if any. However, the business may elect to 262
396+have business damages determined by the court. 263
397+ (7) APPLICATION; CONSTRUCTION. —This section does not apply 264
398+to a business that may claim business damages under chapter 73 265
399+and may not be construed to authorize double recoveries. 266
400+ Section 2. This act applies to county and municipal 267
401+ordinances or charter provisions enacted or amended on or after 268
402+July 1, 2022. 269
403+ Section 3. This act shall take effect July 1, 2022. 270