Special Information Business Owners

What legal notices should I receive before an eminent domain action?

Florida law requires that all condemning authorities send business owners a written notice before filing an eminent domain law suit. The notice must advise the owner that the property will be taken and specifically reference the owner's rights under Florida law. The condemning authority must send the notice by certified mail. The date the business owner receives the notice is significant and begins the 180 day time period the owner has to make an initial business damage offer.

Will the condemning authority make me an initial offer for business damages?

No. Florida law does not require the condemning authority to make an initial offer for business damages. However, the business is required to make a written initial offer of its business damages to the condemning authority and produce certain documents.

What are the requirements to qualify for business damages in an eminent domain action?

Generally, to qualify for business damages in an eminent domain action, four requirements must be met:

• The condemning authority must be a public body, not a public utility or private condemning authority.
• The taking must be for right-of-way (such as a road) as opposed for another use (such as a convention center.)
• The taking must be a partial taking of the owner's property. If the entire property is taken, Florida law does not allow recovery of business damages.
• The business operating on the property must have been established for at least four (4) years.

If all of these requirements are met, the business owner must then make an initial business damage offer to the condemning authority.

What date will be used to calculate business damages?

The date the condemning authority deposits the good faith estimate of value after the order of taking hearing is called the "date of value." Business damages are calculated as of the date of value.

What must I do to protect my ability to claim business damages?

It is important to consult with your attorney to ensure that you satisfy all requirements of Florida Statutes for claiming business damages. An attorney exclusively representing property and business owners in eminent domain actions should be able to guide you. One of the most important matters is to ensure that you make an initial business damage offer and produce the required business documents to the condemning authority.

What if I don't make a business damage offer within 180 days of receiving notice?

Florida Statutes provide that the business owner must make an initial offer of business damages to the condemning authority within 180 days of receiving the initial notice. This offer must include any existing required records. Unless good cause is shown, Florida Statutes require that a judge strike a claim for business damages when the owner fails to make a timely initial offer.

What records must I produce when claiming business damages?

Florida law requires that an owner produce the following records for the five years preceding the date of the received notice:

• Federal income tax returns
• Federal income tax withholding statements
• Federal miscellaneous income tax statements
• State sales tax returns
• Balance sheets
• Profit and loss statements
• State Corporate income tax returns

The owner is also required to produce records he relies upon that substantiate the business damage claim.

Will my business records be held confidential?

Maybe. Business records produced in eminent domain may be held confidential if two requirements are met: first, the disclosure of the records must likely cause substantial harm to the competitive position of the owner; and, second, the owner must request that the records be held confidential.