The Florida Senate
BILL ANALYSIS AND FISCAL IMPACT STATEMENT
(This document is based on the provisions contained in the legislation as of the latest date listed below.)
Prepared By: The Professional Staff of the Committee on Appropriations
BILL: CS/SB 620
INTRODUCER: Appropriations Committee and Senator Hutson
SUBJECT: Local Government
DATE: January 24, 2022 REVISED:
ANALYST STAFF DIRECTOR REFERENCE ACTION
1. Bond Cibula JU Favorable
2. Atchley Sadberry AP Fav/CS
Please see Section IX. for Additional Information:
COMMITTEE SUBSTITUTE - Substantial Changes
I. Summary:
CS/SB 620 creates a cause of action for an established business to recover loss of business
damages from a county or municipality whose regulatory action has caused a significant impact
on the business.
Currently, landowners have a cause of action under the Bert J. Harris Act to compensate them for
the lost value of their land caused by certain local government actions; landowners have a cause
of action for onerous local regulation in the form of exactions; and business landowners have a
cause of action under eminent domain law for business damages related to a taking of real
property. Similarly, this bill creates a cause of action for a business to sue a local government
when the enactment or amendment of an ordinance or charter provision causes at least a
15 percent loss of profits to the business. The business must have been in operation for at least 3
years to qualify. Business damages recoverable are the probable damages to such business which
the application of the enactment or amendment of the ordinance or charter provision may
reasonably cause. Local government can cure by amending or repealing the local government
actions causing business damages. Compliance with a 180-day presuit notice and settlement
period is required. A prevailing business may also be awarded costs and attorney fees payable by
the county or municipality. If the parties settle the matter pre-trial, attorney fees are limited to a
reasonable rate. If the business prevails after the presuit process, attorney fees are a percentage of
the difference between the county or municipality’s counteroffer and the final award.
The bill may have an indeterminate negative fiscal impact on local governments. The bill does
not appear to have a fiscal impact on state government.
BILL: CS/SB 620 Page 2
The bill is effective upon becoming a law, and applies to enactment or amendment of an
ordinance or charter provision on or after becoming a law.
II. Present Situation:
Home Rule Powers
The Florida Constitution
The Florida Constitution establishes and describes the duties, powers, structure, function, and
limitations of government in Florida. Article VIII, sections 1 and 2 of the Florida Constitution,
endows counties and municipalities the power of self-government or home rule power. Under the
home rule power, local governments have broad authority to exercise the state’s sovereign police
powers and legislate on any matter that is not inconsistent with federal law and the State
Constitution and state laws.
Counties
A county without a charter has such power of self-government as provided by general or special
law and may enact county ordinances not inconsistent with general law.1 Counties operating
under county charters have all the powers of local self-government not inconsistent with general
law or with special law approved by a vote of the electors.2 General law authorizes counties “the
power to carry on county government”3 and to “perform any other acts not inconsistent with law,
which acts are in the common interest of the people of the county, and exercise all powers and
privileges not specifically prohibited by law.”4
Municipalities
Municipalities may be established or abolished, and their charters amended by general or special
law. Municipalities have governmental, corporate, and proprietary powers to conduct municipal
government, perform municipal functions, and render municipal services. They may exercise any
of these powers for municipal purposes except as otherwise provided by law.5 Chapter 166, F.S.,
also known as the Municipal Home Rule Powers Act,6 acknowledges these constitutional grants
of police power and better defines municipal powers of self-government.7 Chapter 166, F.S.,
provides municipalities with broad home rule powers to act in a manner not inconsistent with the
Florida Constitution, general and special law, and a charter for the county in which the
municipality is located.8
1
FLA. CONST. art. VIII, s. 1(f).
2
FLA. CONST. art. VIII. s. (1)(g).
3
Section 125.01(1), F.S.
4
Section 125.01(1)(w), F.S.
5
FLA. CONST. art. VIII, s. 2.
6
Section 166.011, F.S.
7
Florida House of Representatives, Publications, The Local Government Formation Manual 2017-2018, p. 16, available at:
http://www.myfloridahouse.gov/Sections/Documents/loaddoc.aspx?PublicationType=Committees&CommitteeId=2911&Ses
sion=2017&DocumentType=General Publications&FileName=2017-2018 Local Government Formation Manual Final
Pub.pdf (last visited Nov. 23, 2021).
8
Section 166.021(4), F.S.
BILL: CS/SB 620 Page 3
Current Laws Providing Compensation for County and Municipal Governmental Actions
Eminent Domain
Both the Federal Constitution and State Constitution guarantee that a person’s private property
may not be taken for public use without reimbursement. The Fifth Amendment to the United
States Constitution states that no private property shall “be taken for public use without just
compensation.” Similarly, the Florida Constitution provides that no private property shall be
taken except for a public purpose and that each owner must be fully compensated.9 Florida
eminent domain law compensates a landowner for the value of real property taken for a public
purpose. If the taking impacts an ongoing business, the law also provides for payment of
business damages related to the eminent domain taking. The term business damages refers to
“the probable damages to such business which the denial of the use of the property so taken may
reasonably cause.”10
State eminent domain law also provides an affected landowner the right to attorney fees. 11 Where
the parties settle, the state or local government must pay a reasonable attorney fee, but where the
issue is litigated the fee is based on benefit to the landowner. Examples of how this works in the
context of business damages payable to a landowner in an eminent domain case:
Business Damages in Eminent Domain Attorney Fee Examples
Description Attorney Fee Calculation
Business owner’s offer is $500,000. The Attorney’s fees would be based on a
government accepts the offer. reasonable amount of time at a reasonable
rate.
Business owner’s offer is $500,000. The Attorney’s fees would be based on a
government’s counteroffer is $400,000, reasonable amount of time at a reasonable
which is accepted by the business owner. rate.
Business owner’s offer is $500,000. The Attorney’s fees, based on that benefit, would
government’s counteroffer is $100,000. be $100,000 x 33% = $33,000.
Business owner rejects the counteroffer. At
trial, the jury awards $200,000. The
“benefit” is $100,000
Business owner’s offer is $50,000. The Attorney’s fees based on the $10,000 benefit
government’s counteroffer is $10,000. The would be $10,000 x 33% = $3,300.
claim does not go to trial and is settled for
$20,000.
9
FLA. CONST. Art. X, s. 6.
10
Section 73.071(2)(b), F.S.
11
Section 73.092, F.S.
BILL: CS/SB 620 Page 4
The Bert J. Harris, Jr., Private Property Rights Protection Act
The Legislature enacted the “Bert J. Harris, Jr., Private Property Rights Protection Act” in 1995.
The act provides relief to a property owner whose property is inordinately burdened by
government regulation. The act is limited in scope and applies only to:
 Real, and not personal, property;
 A property owner and not a leaseholder;
 “As-applied” challenges for specific government actions, not to broad, facial challenges of
government regulations; and
 Challenges that are not based on temporary impacts.12
The Legislature recognized that some laws, regulations, and ordinances of the state and its
entities could inordinately burden, restrict, or limit private property rights without amounting to a
taking13 under either the State Constitution or the United States Constitution. The Legislature
declared that there is “an important state interest in protecting the interests of private property
owners from those inordinate burdens.” Accordingly, the Legislature created a separate and
distinct cause of action for governmental actions that might not rise to the level of taking under
the State Constitution or United States Constitution. The Legislature provided a process for
private landowners to seek relief, or payment of compensation, when a new law, rule, regulation,
or ordinance of the state or a political entity, as applied, unfairly affects real property.14
The phrases “inordinate burden” and “inordinately burdened” mean that an action by one or
more governmental entities has directly restricted or limited the use of real property to the extent
that:
 The property owner is permanently unable to attain the reasonable, investment-backed
expectation for the existing use of the real property or a vested right to a specific use of the
real property with respect to the real property as a whole; or
 The property owner is left with existing or vested uses that are unreasonable such that the
property owner bears a disproportionate share of a burden imposed for the good of the public,
which in fairness should be borne by the public at large.15
Before a property owner files an action for compensation under the Bert Harris Act, he or she
must present a written claim to the head of the government entity at least 90 days before filing an
action. In addition to the claim, the property owner must submit a valid appraisal that supports
the claim and demonstrates the loss in fair market value to the property.16,17 If other parties are
12
W. Thomas Hawkins, Land Use Law in Florida, 17-3 (Routledge, 2021).
13
A “taking” is generally understood to mean a government action that deprives an owner of the use or enjoyment of his or
her property. A regulatory taking occurs when a government regulation seriously restricts a property owner’s rights. BLACK’S
LAW DICTIONARY (10th ed. 2014).
14
Section 70.001(1), F.S.
15
Section 70.001(3)(e)1., F.S. The definition further explains in s. 70.001(3)(e)2., F.S., what the terms do not include with
regard to other impacts.
16
Section 70.001(4)(a), F.S.
17
The appraisal should contain valuations of the property both before and after the government’s restriction was imposed.
This will enable the government to adequately evaluate the property owner’s potential claim for the purpose of developing a
settlement offer during the pre-suit period. Margaret L. Cooper, Ronald L. Weaver, and Joanne M. Connor, Statutory Private
Property Rights Protection, 6,The Florida Bar, 2018 Florida Real Property Litigation (2018),
https://1.next.westlaw.com/Link/Document/FullText?findType=Y&serNum=0368929390&pubNum=0116933&originatingD
BILL: CS/SB 620 Page 5
involved, the governmental entity must notify them, including all owners of real property that is
contiguous to the owner’s property.18
During the 90-day notice period, which may be extended by an agreement of the parties, the
government is required to make a written settlement offer to the claimant. The settlement may
contain an offer to:
 Adjust land development, permit standards, or similar provisions controlling the development
or use of the land.
 Increase or modify density, intensity, or use of areas of development.
 Transfer development rights.
 Entertain land swaps or exchanges.
 Mitigate, including payments in lieu of onsite mitigation.
 Locate on the least sensitive portion of the property.
 Condition the amount of development or use permitted.
 Require that issues be addressed on a more comprehensive basis.
 Issue a development order, variance, special exception, or other extraordinary relief.
 Purchase the property or an interest in it.
 Make no changes to the proposed action.19
If the property owner rejects the settlement offer with the allowable uses, the property owner
may file a claim in circuit court and the county where the real property is located.20 A cause of
action may not be filed more than 1 year after a law or regulation is “first applied” by the
government to the property at issue. The 1-year time frame begins when the law or regulation is
clear and unequivocal in its terms and notice is provided by mail to the affected property owner
or registered agent. Otherwise, the law or regulation is considered first applied to the property
when there is a formal denial of a written request for a development order or variance, unless
under the terms of the regulation at issue, such requests would be a waste of resources.21
The court then conducts a bench trial to determine whether an existing use of the real property or
a vested right to a specific use of the property existed and whether the government inordinately
burdened the owner’s property. If the court determines that an inordinate burden was imposed,
the court must also determine the percentage of responsibility each governmental entity must
bear.22 The property owner may decide whether the amount of compensation is to be determined
by the court or jury.23
The court, and not the jury, will determine what constitutes reasonable costs and attorney fees. 24
oc=N090388C02AB211E5823BE24E38CB0B04&refType=SA&originationContext=contextAnalysis&contextData=%28sc.
UserEnteredCitation%29&transitionType=ContextAnalysisItem.
18
Section 70.001(4)(b), F.S.
19
Section 70.001(4)(c), F.S.
20
Section 70.001(5)(b), F.S.
21
Section 70.001(11), F.S.
22
Section 70.001(6)(a), F.S.
23
Section 70.001(6)(b), F.S.
24
Section 70.001(6)(c)3., F.S.
BILL: CS/SB 620 Page 6
The property owner is entitled to recover reasonable costs and attorney fees from the government
from the date the action was filed in circuit court if:
 The property owner prevails; and
 The court determines that the government’s settlement offer did not constitute a bona fide
offer that reasonably would have resolved the claim during the 90-day notice period.25
Similarly, the government is entitled to recover reasonable costs and attorney fees incurred from
the date the action was filed in circuit court if:
 The government prevails; and
 The court determines that the property owner did not accept a bona fide settlement offer
which reasonably would have fairly resolved the claim if the offer had been accepted by the
property owner during the 90 day notice period.26
Governmental Exactions
In response to a 2013 U.S. Supreme Court case, Koontz v. St. John’s River Water Management
District,27 the Legislature enacted s. 70.45, F.S., in 2015, and created a cause of action for a
property owner to recover damages caused by a “prohibited exaction.”28 Essential phrases from
the Koontz decision are embedded in the statute. A prohibited exaction is defined as any
condition imposed by a governmental entity on a property owner’s proposed use of real property
that does not have “an essential nexus to a legitimate public purpose and is not roughly
proportionate to the impacts of the proposed use that the governmental entity” is seeking to
avoid, minimize, or mitigate.29
The action may not be brought until a prohibited exaction is actually imposed or required in
writing as a final condition of approval for the requested use of real property. The right to bring
the action may not be waived.30