HOUSE OF REPRESENTATIVES STAFF ANALYSIS
BILL #: CS/CS/HB 569 Business Damages Caused by Local Governments
SPONSOR(S): Local Administration & Veterans Affairs Subcommittee, Civil Justice & Property Rights
Subcommittee, McClure
TIED BILLS: IDEN./SIM. BILLS: CS/SB 620, 1st Eng.
REFERENCE ACTION ANALYST STAFF DIRECTOR or
BUDGET/POLICY CHIEF
1) Civil Justice & Property Rights Subcommittee 12 Y, 5 N, As CS Mawn Jones
2) Local Administration & Veterans Affairs 11 Y, 6 N, As CS Leshko Miller
Subcommittee
3) Judiciary Committee 13 Y, 7 N Mawn Kramer
SUMMARY ANALYSIS
The Takings Clauses of the Florida and U.S. Constitutions prohibit the government from depriving a person of
his or her private property for public use "without just compensation," which compensation may include
business damages in specified circumstances. Florida law also provides legal remedies when a local
government burdens property rights in a manner that does not amount to a "taking.” Specifically, if a local
government enacts a regulation inordinately burdening private property, a property owner may recover
damages under the Bert Harris, Jr., Private Property Rights Protection Act (“Bert Harris Act”) if certain
procedural requirements are met. Additionally, if the local government unreasonably rejects a property owner's
proposed use of his or her property, otherwise known as an "exaction," the property owner may sue the
government for damages after complying with certain procedural requirements. Business damages, however,
are not awardable under the Bert Harris Act or in an action involving an exaction. In other words, business
damages are not awardable when a government burden on private property does not amount to a “taking.”
CS/CS/HB 569 creates a mechanism for a private, for-profit business owner to recover business damages
related to local government action not amounting to a taking in specified circumstances. Specifically, the bill:
 Entitles a private, for-profit business to recover business damages from a local government if the local
government enacts or amends an ordinance or charter provision that has or will cause a reduction of at
least 15 percent of the business’s profit, as applied on a per location basis of a business operated
within the jurisdiction, and the business has engaged in lawful business in the county or municipality’s
jurisdiction for at least three years before the ordinance or charter provision is enacted or amended.
 Excludes specified ordinances and charter provisions from the scope of the bill, including certain
emergency ordinances.
 Specifies that the bill does not apply to a business that may claim business damages in an eminent
domain proceeding.
 Establishes pre-suit requirements, including a settlement offer process involving the provision of
business records supporting the business damages claim.
 Provides methods by which a local government may avoid liability after receiving notice of a claim.
 Requires that an action to recover business damages be filed within one year of the effective date of
the enactment or amendment of the relevant ordinance or charter provision and authorizes the court in
such an action to award reasonable attorney fees and costs to the prevailing party.
 Limits the amount of business damages that may be awarded to the present value of the business’s
future lost profits for the lesser of seven years or the number of years the business had been in
operation in the jurisdiction before the ordinance or charter provision was enacted.
The bill will have an indeterminate fiscal impact on state government and may have a substantial fiscal impact
on local governments. The bill provides an effective date of upon becoming a law.
This docum ent does not reflect the intent or official position of the bill sponsor or House of Representatives .
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 FULL ANALYSIS
I. SUBSTANTIVE ANALYSIS
A. EFFECT OF PROPOSED CHANGES:
Background
Eminent Domain
The United States Constitution authorizes the government to take private property for public use as
long as it fairly compensates the property owner for the taking.1 Similarly, the Florida Constitution
authorizes the taking of private property for a public purpose2 under its eminent domain powers but
requires the condemning authority to fully compensate3 the owner for such taking.4 The state, counties,
municipalities, administrative agencies, railroads, utility companies, and certain districts and authorities
(“condemning authorities”) have eminent domain powers.
Presuit Requirements
Before bringing an eminent domain proceeding, the condemning authority must try to negotiate in good
faith with the property owner, provide the owner with a written compensation offer, and try to reach an
agreement on the amount to be paid for the taking.5 If negotiations fail, the condemning authority may
file a condemnation petition in the circuit court of the county where the property is located. 6
Damages
The issue of compensation in an eminent domain proceeding must be referred to a jury of 12 persons,
and any compensation awarded must include the value of the property sought to be appropriated.7 In
some cases, compensation awarded in an eminent domain proceeding can include business damages,
consisting of “lost profits, loss of goodwill, and costs related to the moving and selling of equipment”
attributable to the taking.8 For a business to qualify for a business damages award, the business must:
 Have been established at the place of the taking for at least five years;
 Be subject to a partial, as opposed to a whole, taking of property;
 Have utilized the part of the property taken as part of the business; and
 Set forth in his or her written defenses the nature and extent of the business damages. 9
However, a business that rents its premises is not eligible for business damages in an eminent domain
proceeding; such damages are only awardable to a business that actually owns its premises and
suffers a partial taking.
1 U.S. Const. amend. V. The Fifth Amendment applies to the states through the Fourteenth Amendment.
2 For a use to be public, there must be a right on the part of the public, or some portion of it, to use or enjoy it and a duty on the part of
the owner to furnish it to the public. Where both private and public benefits result from a taking, the determinat ion of whether the taking
was for a public use may turn on whether the public benefits are of a primary or an incidental nature. 21 Fla. Jur. 2d Eminent Domain
ss. 26-27.
3Joseph B. Doerr Trust v. Central Florida Expressway Authority, 177 So. 3d 1209 (Fla. 2015) (holding that “it is also fundamentally clear
that full compensation under the Florida Constitution includes the right to a reasonable attorney’s fee for the property owne r. In Florida
eminent domain proceedings, the goal is to render the private p roperty owner as whole as possible.”); See also Florida Dept. of
Revenue v. A. Duda & Sons, Inc., 608 So. 2d 881 (Fla. 5th DCA 1992) (holding that full compensation, however, is limited to payment
for loss of tangible property). .
4 Art. X, s. 6, Fla. Cons t.
5 S. 73.015(1), F.S.
6 S. 73.021, F.S.
7 S. 73.071, F.S.
8 S. 73.071, F.S.; Systems Components Corp. v. Dep’t of Transp., 985 So. 2d 687 (Fla. 5th DCA 2008).
9 S. 73.071, F.S.
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 Attorney Fees and Costs
Attorney fees generally may be awarded to a property owner in an eminent domain proceeding based
on the “benefits achieved” by the property owner, meaning “the difference, exclusive of interest,
between the final judgment or settlement and the last written offer made by the condemning authority
before the [property owner] hires an attorney.”10 However, if the condemning authority does not make a
written offer before the property owner hires an attorney, benefits must be measured from the first
written offer after the attorney was hired.11
In determining attorney fees based on benefits achieved, if substantiating business records were:
 Provided to the condemning authority, benefits must be based on the difference between the
final judgment or settlement and the written counteroffer made by the condemning authority. 12
 Not provided to the condemning authority initially but were later deemed material to the
business damages determination, benefits must be based on the difference between the final
judgment or settlement and the first written counteroffer made by the condemning authority
within 90 days from its receipt of the previously not provided business records.13
The court may also consider non-monetary benefits obtained for the property owner through the
attorney’s efforts, to the extent such benefits are specifically identified by the court and can be
quantified within a reasonable degree of certainty.14
Attorney fees based on benefits achieved are awarded in accordance with the following schedule:
 33 percent of any benefit up to $250,000; plus
 25 percent of any benefit between $250,000 and $1 million; plus
 20 percent of any portion of the benefit exceeding $1 million.15
However, in assessing attorney fees incurred in defeating an order of taking, or for apportionment or
other supplemental proceedings when not otherwise provided for, 16 a court must consider instead the:
 Novelty, difficulty, and importance of the question involved;
 Skill employed by the attorney in conducting the cause;
 Amount of money involved;
 Responsibility incurred and fulfilled by the attorney;
 Attorney’s time and labor reasonably required to adequately represent the property owner in
relation to the benefits resulting to the property owner;
 Fee customarily charged for legal services of a comparable or similar nature; and
 Any attorney fees award based on benefits achieved. 17
Bert J. Harris, Jr., Private Property Rights Protection Act
In 1995, the Florida Legislature enacted the Bert J. Harris, Jr., Private Property Rights Protection Act
(“Bert Harris Act”).18 The Bert Harris Act created a new cause of action for private property owners
whose real property is inordinately burdened by a government action19 not rising to the level of a
10 S. 73.092(1), F.S.
11 S. 73.092(1)(a), F.S.
12 S. 73.092(1)(a)1., F.S.
13 Id.
14 S. 73.092(1)(b), F.S.
15 S. 73.092(1)(c), F.S.
16 That is, when attorney fees are incurred for a required proceeding that does not result in a monetary benefit upon which a fe e can be
based.
17 S. 73.092(2), F.S.; S.W. Fla. Water Management Dist. v. Shea, 86 So. 3d 582 (Fla. 2d DCA 2012).
18 Ch. 95-181, Laws of Fla., now codified as s. 70.001, F.S.
19 S. 70.001(3)(d), F.S., provides that the term "action of a governmental entity" means a specific action of a governmental entity which
affects real property, including action on an application or permit.
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 taking.20 The inordinate burden can apply in the context of either an existing use of real property21 or a
vested right22 to a specific use.23
Presuit Requirements
Before filing an action under the Bert Harris Act, a claimant must generally give 150 days' notice to the
government entity, along with a valid appraisal showing the loss in the property’s fair market value.24
The government must then notify all property owners adjacent to the claimant's property of the pending
claim and make a written settlement offer to the claimant.25 A property owner may reject the settlement
offer and file an action in circuit court.26 However, a claim generally cannot be filed more than one year
after the law or regulation unequivocally impacts the property and notice is mailed to the affected
property owner.27 If the law or regulation does not unequivocally impact the property, or if notice to the
property owner is not mailed, the one-year period does not start until the government formally denies
the property owner’s development or variance request.28
Damages
The court determines whether the government inordinately burdened the property, and if so, calculates
each involved government entity’s percentage of responsibility. 29 A jury determines the appropriate
amount of damages – that is, the loss in the property’s fair market value due to the burden – but may
not consider or award any business damages.30
Attorney Fees and Costs
There is statutory two-way attorney fee provision for a Bert Harris Act claim. The claimant is entitled to
recover costs and attorney fees incurred from the time the action was filed if:
 The claimant prevails; and
 The court determines that the settlement offer was not a bona fide offer which reasonably would
have resolved the claim.31
The government is entitled to recover costs and attorney fees if:
 The government prevails; and
 The court determines the claimant did not accept a bona fide settlement offer which reasonably
would have resolved the claim fairly.32
Unlawful Exactions
In 2015, the Legislature enacted s. 70.45, F.S., to provide a state cause of action for a prohibited
exaction not rising to the level of a taking. A "prohibited exaction" is any condition imposed by the
government on a property owner's proposed use of real property that lacks an essential nexus to a
20 S. 70.001(1) and (9), F.S.
21 “Existing use” means: (1) an actual, present use or activity on the real property, including periods of inactivity normally associated
with, or incidental to, the nature or type of use; or (2) an activity or such reasonably foreseeable, non-speculative land uses which are
suitable for the subject real property and compatible with adjacent land uses and which have created an existing fair market value in the
property greater than the fair market value of the actual, present use or activity on the property. S. 70.001(3)(b), F.S.
22 The existence of a “vested right” is determined by applying the common law principles of equitable estoppel or substantive du e
process or by applying the state’s statutory law. S. 70.001(3)(a), F.S.
23 S. 70.001(2), F.S.
24 S. 70.001(4)(a), F.S. If a property is classified as agricultural under s. 193.461, F.S., the notice period is 90 days.
25 S. 70.001(4)(c), F.S.
26 S. 70.001(5)(b), F.S.
27 S. 70.001(11)(a)1., F.S.
28 S. 70.001(11)(a)2., F.S.
29 S. 70.001(6)(a), F.S.
30 S. 70.001(6)(b), F.S.
31 S. 70.001(6)(c)1., F.S.
32 S. 70.001(6)(c)2., F.S.
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 legitimate public purpose and is not roughly proportionate to the impacts of the proposed use that the
governmental entity seeks to avoid, minimize, or mitigate.33
Presuit Requirements
A property owner may bring an action to recover damages caused by a prohibited exaction if:
 The prohibited exaction is imposed or required, in writing, as a final condition for approval of
the proposed land use; and
 At least 90 days before filing the action, but no later than 180 days after the exaction is
imposed, the property owner gives the government written notice:
o Identifying the exaction;
o Explaining why it is unlawful; and
o Estimating the damages.34
Upon receiving written notice of the alleged claim, the governmental entity must review the notice and
respond in writing by identifying the basis for the exaction and explaining why the exaction is
proportionate to the harm created by the proposed use of real property, or by proposing to remove or
modify the exaction.35 The government's written response may only be used against it in subsequent
litigation to assess attorney fees and costs.36
Damages
For a prohibited exaction claim, the government has the burden to prove the exaction has an essential
nexus to a legitimate public purpose and is roughly proportionate to the impacts of the proposed use
that the governmental entity is seeking to avoid, minimize, or mitigate. 37 The property owner in such a
claim has the burden of proving damages resulting from the prohibited exaction. 38 Relief available in
such a claim includes:
 Injunctive relief;
 An amount of damages equal to the reduction in fair market value of the real property; and
 The amount of the fee or infrastructure cost that exceeds what would otherwise be allowed. 39
However, business damages are not awardable in an exaction claim. 40
Attorney Fees an