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In the (in)famous case of Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 413 (1922) Justice Oliver Wendall Holmes  explained “We are in danger of forgetting that a strong public desire to improve the public condition is not enough to warrant achieving the desire by a shorter cut than the constitutional way of paying for the change.” He continues that “Government hardly could go on if to some extent values incident to property could not be diminished without paying for every such change in the general law.” While dating back to the constitutions founding, this case largely set the stage for a broad area of law known colloquially as “Takings” and “Eminent Domain”.

The concept of eminent domain is included in the takings clause of the 5th Amendment to the U.S. Constitution, which provides in part that “No person shall… be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.” U.S. Const. amend. V. The 14th Amendment to the U.S. Constitution makes clear that state and local governments cannot exercise their sovereignty in a way that is inconsistent with the 5th Amendment: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law…”. U.S. Const. amend. XIV, § 1.

Inverse condemnation is a claim made by a property owner that the effect of a governmental action or regulation on its property or the use thereof is so devastating that it is the equivalent of the direct exercise of eminent domain, and thus requires just compensation under the 5th or 14th amendments to the US Constitution, or similar state law protections (such as the Florida Constitutions Taking Provisions). Such claims are commonly referred to as regulatory takings. In order to establish liability, the property owner must prove that it was deprived of all or substantially all economically beneficial use of its property, whether temporarily or permanently.

 

While takings are typically applied to situations where the government permanently and removes the current landowner from any further interest in at least some portion of his property, they also have been found to exist in situations where a property interest is temporary or limited to real estate interests that are less than fee ownership, such as easements. Similarly, the courts have also upheld takings which are limited to the value of a leasehold interest or other possessory right.

 

As an indication of just how substantial this deprivation of use must be in order to establish a taking, Justice Scalia (one of the most property rights-friendly justices on the Supreme Court) has stated that even a 95-percent reduction in value is not always sufficient to establish liability. Even what seem to be rather egregious facts may not be enough to establish liability. Examples of successful claims include those that can establish physical occupation of the property by the government, complete elimination of use of the property, or elimination of access to the property.

 

CONDEMNATION (REGULATORY TAKING) V. ADVERSE POSSESSION

 

Richard Polk filed suit against the state of Florida and the Department alleging that the September 1985 destruction of the citrus nursery stock constituted a taking for which he was entitled to compensation under both the Florida and the United States Constitutions. The trial was bifurcated. The liability issue was tried to the court. In its final judgment, the trial court rejected the Department’s contention that Polk’s complaint alleged a tort by the state which is governed by the provisions of section 768.28, Florida Statutes (1985). The trial court viewed the action as an inverse condemnation claim to which section 768.28 is inapplicable, rather than a tort claim. Dept. of Agr. Consumer Serv. v. Polk, 568 So. 2d 35, 38 (Fla. 1990)

On the issue of whether or not the Department’s action was a taking which required full and just compensation, the trial court ruled that the regulation, as applied in the instant case, was arbitrary and capricious; that the action failed to promote public health, safety, or welfare; and that no public harm was actually prevented by the destruction. Dept. of Agr. Consumer Serv. v. Polk, 568 So. 2d 35, 38 (Fla. 1990)

A jury trial was held to determine the compensation due Polk Nursery pursuant to the court’s final judgment on liability. Subsequent to the presentation of Polk’s case, the Department proffered testimony which the trial court had ruled was inadmissible during the pretrial conference. The trial court again ruled the evidence inadmissible and the Department rested without presenting any further evidence or testimony. The trial court granted a partial directed verdict in favor of Polk Nursery in the amount of $1,613,214.00 for the nursery’s mature budded trees, immature budded trees, and potted nursery trees. The remaining damages issues were submitted to the jury, which reached a verdict in favor of Polk Nursery in the sum of $1,045,834.00. Final judgment for Polk Nursery’s combined damages, plus interest, was rendered in the total sum of $3,003,455.30. The Department’s motion for new trial was denied. The Department appealed to the Second District Court of Appeal and Polk filed a cross appeal. The district court certified the case to this Court as being of great public importance and requiring immediate resolution by this Court.

Dept. of Agr. Consumer Serv. v. Polk, 568 So. 2d 35, 38 (Fla. 1990)

 

A review of the record, however, reveals that Polk did not challenge the validity of the Department’s statutory authority. Further, Polk neither challenged the validity of the Department’s rule nor alleged that the Department failed to comply with or properly implement the rule. Compare Albrecht v. State,444 So.2d 8 (Fla. 1984)

Dept. of Agr. Consumer Serv. v. Polk, 568 So. 2d 35, 38-39 (Fla. 1990)

 

In Corneal v. State Plant Board, 95 So.2d 1, 4 (Fla. 1957), this (FLSC) Court stated:

 

In enacting regulatory measures which protect but do not destroy property, the law need not restrict itself to conditions actually harmful but may require precautions within the whole range of possible danger. But the absolute destruction of property is an extreme exercise of the police power and is justified only within the narrowest limits of actual necessity, unless the state chooses to pay compensation. Dept. of Agr. Consumer Serv. v. Polk, 568 So. 2d 35, 39 (Fla. 1990)

This Court (FLSC) has recognized on numerous occasions that “it is a settled proposition that a regulation or statute may meet the standards necessary for exercise of the police power but still result in a taking.” Mid-Florida Growers,521 So.2d at 103Albrecht, 444 So.2d at 12; Graham v. Estuary Properties, Inc.,399 So.2d 1374, 1381 (Fla.), cert. denied, 454 U.S. 1083, 102 S.Ct. 640, 70 L.Ed.2d 618 (1981).

Dept. of Agr. Consumer Serv. v. Polk, 568 So. 2d 35, 39 (Fla. 1990) “As we noted in Mid-Florida Growers, however, “the trial judge in an inverse condemnation suit is the trier of all issues, legal and factual, except for the question of what amount constitutes just compensation.” Dept. of Agr. Consumer Serv. v. Polk, 568 So. 2d 35, 40 (Fla. 1990)

 

As we noted in Mid-Florida Growers, however, “the trial judge in an inverse condemnation suit is the trier of all issues, legal and factual, except for the question of what amount constitutes just compensation. The trial court’s determination of liability in an inverse condemnation suit is presumed correct and its findings will not be disturbed on appeal if supported by competent, substantial evidence.” 521 So.2d at 104 (citations omitted) Dept. of Agr. Consumer Serv. v. Polk, 568 So. 2d 35, 40 (Fla. 1990)

 

 

FEDERAL TAKINGS LAW

 

“No person shall… be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.” U.S. Const. amend. V.

 

 

FIFTH AMMENDMENT TO THE US CONSTITUTION

 

The executive branch of the government, like the federal government as a whole, possesses only delegated powers. However, the enumerated powers should be given the scope and elasticity afforded by what seem to be reasonable practical implications instead of the rigidity dictated by a doctrinaire textualism. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 582, 72 S. Ct. 863, 864 (1952)

The Federal Constitution, which, aside from suspension of the privilege of the writ of habeas corpus in time of rebellion or invasion, when the public safety may require it, makes no express provision for exercise of extraordinary presidential authority because of a crisis, cannot be amended by the courts so as to confer upon the President inherent powers to meet an emergency. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 582, 72 S. Ct. 863, 864 (1952)

 

FLORIDA LAW

 

Florida has found that the power of eminent domain can only be exercised by governmental entities to which the state has delegated that power. Kittel-Glass v. Oceans Four Condominium Ass’n, 648 So. 2d 827, 829, 1995 Fla. App. LEXIS 60, *5, 20 Fla. L. Weekly D 173 (Fla. Dist. Ct. App. 5th Dist. January 6, 1995). The natural extension of this is that inverse condemnation and regulatory takings may likewise only be carried out by those agencies and municipal authorities which have been delegated the authority to so act.

 

Florida has extended this right under Florida Statutes § 166.401, Right of eminent domain; procedure; compliance with limitations which provides that (1) All municipalities in the state may exercise the right and power of eminent domain; that is, the right to appropriate property within the state, except state or federal property, for the uses or purposes authorized pursuant to this part. The absolute fee simple title to all property so taken and acquired shall vest in such municipal corporation unless the municipality seeks to condemn a particular right or estate in such property. (2) Each municipality is further authorized to exercise the eminent domain power granted to the Department of Transportation in s. 337.27(1) and the transportation corridor protection provisions of s. 337.273. (3) The local governing body of a municipality may not exercise its power of eminent domain unless the governing body adopts a resolution authorizing the acquisition of a property, real or personal, by eminent domain for any municipal use or purpose designated in such resolution. (4) Each municipality shall strictly comply with the limitations set forth in ss. 73.013 and 73.014. § 166.401. Fla. Stat. (LexisNexis, Lexis Advance through legislation effective through April 28, 2020) Florida has further clarified that “Actions in eminent domain shall be governed by the rules of civil procedure and the appellate rules…”. Fla. Stat. § 73.012.

 

Florida has enhanced the federal takings provision in order to make it broader, cover more, and provide greater compensation. This enhanced version of the federal law seeks to protect property owners being asked to bear a disproportionate share of the burdens of achieving environmental and quality of life goals for the public at large through restrictive regulation of the use of their land and property interests. Florida, a state highly protective of property rights, places a large obligation imposed to ensure owners are properly compensated.

 

The Florida Constitution provides in Article X, Section 6(a) that:

 

“No private property shall be taken except for a public purpose and with full compensation therefor paid to each owner or secured by deposit in the registry of the court and available to the owner.”

 

While the state typically exercises this authority under a formal proceeding, “when a governmental body takes private property without first initiating formal proceedings, the injured property owner may institute an inverse condemnation suit.” State v. Scott, 418 So. 2d 1032, 1033 (Fla. 2d DCA 1982). This was further clarified under Sarasota Welfare Home v. City of Sarasota which provided that inverse condemnation or a regulatory taking occurs in Florida where there is (1) a taking, (2) of private property, (3) for a public purpose, (4) without payment to the property owner for the same. Sarasota Welfare Home v. City of Sarasota, 666 So. 2d 171. In Scott, the court defined a taking as “Entering upon private property for more than a momentary period and, under the warrant or color of legal authority, devoting it to a public use, or otherwise informally appropriating or injuriously affecting it in such way as substantially to oust the owner and deprive him of all beneficial enjoyment thereof.”

A taking may occur in a wide variety of circumstances and may be either temporary or permanent. For example, a taking may occur when governmental action causes a loss of access to one’s property even though there is no physical appropriation of the property itself. Rubano v. Dep’t of Transp., 656 So. 2d 1264. The Florida Courts have found takings to occur where access is entirely cut off even where occur even if there is not “complete loss of access to the property” so long as the property owner’s right of access was “substantially diminished.” Tessler, 538 So. 2d at 848. In Scott, the court notes “The common thread running through the cases on inverse condemnation involves situations where a continuing trespass or nuisance ripens into a constitutional taking of property without the payment of just compensation.” State v. Scott, 418 So. 2d 1032, 1033 (Fla. 2d DCA 1982).

In Lucas, the court provides that “(w)here a state seeks to sustain regulation that deprives land of all economically beneficial use, it may resist compensation only if the logically antecedent inquiry into the nature of the owner’s estate shows that the proscribed use interests were not part of his title to begin with.”At least two discrete categories exist of regulatory action as compensable without case-specific inquiry into the public interest advanced in support of the restraint. The first encompasses regulations that compel the property owner to suffer a physical invasion of his property. In general (at least with regard to permanent invasions), no matter how minute the intrusion, and no matter how weighty the public purpose behind it, the Supreme Court of the United States has required compensation. The second situation in which the Supreme Court of the United States has found categorical treatment appropriate is where regulation denies all economically beneficial or productive use of land. The Fifth Amendment is violated when land-use regulation does not substantially advance legitimate state interests or denies an owner economically viable use of his land. Lucas v. S.C. Coastal Council, 505 U.S. 1003, 1006, 112 S. Ct. 2886, 2889, 120 L. Ed. 2d 798, 807, 1992 U.S. LEXIS 4537, *1, 60 U.S.L.W. 4842, 92 Daily Journal DAR 9030, 22 ELR 21104, 34 ERC (BNA) 1897, 6 Fla. L. Weekly Fed. S 715 (U.S. June 29, 1992).

Regulations that prohibit all economically beneficial use of land cannot be newly legislated or decreed (without compensation), but must inhere in the title itself, in the restrictions that background principles of the state’s law of property and nuisance already place upon land ownership. A law or decree with such an effect must, in other words, do no more than duplicate the result that could have been achieved in the courts — by adjacent landowners (or other uniquely affected persons) under the state’s law of private nuisance, or by the state under its complementary power to abate nuisances that affect the public generally, or otherwise. The use of these properties for what are now expressly prohibited purposes was always unlawful, and (subject to other constitutional limitations) it was open to the State at any point to make the implication of those background principles of nuisance and property law explicit. See Michelman, Property, Utility, and Fairness, Comments on the Ethical Foundations of “Just Compensation” Law, 80 Harv. L. Rev. 1165, 1239-1241 (1967). In light of our traditional resort to “existing rules or understandings that stem from an independent source such as state law” to define the range of interests that qualify for protection as “property” under the Fifth and Fourteenth Amendments, Board of Regents of State Colleges v. Roth, 408 U.S. 564, 577, 33 L. Ed. 2d 548, 92 S. Ct. 2701 (1972); see, e.g., Ruckelshaus v. Monsanto Co., 467 U.S. 986, 1011-1012, 81 L. Ed. 2d 815, 104 S. Ct. 2862 (1984); Hughes v. Washington, 389 U.S. 290, 295, 19 L. Ed. 2d 530, 88 S. Ct. 438 (1967) (Stewart, J., concurring), this recognition that the Takings Clause does not require compensation when an owner is barred from putting land to a use that is proscribed by those “existing rules or understandings” is surely unexceptional. HN10 When, however, a regulation that declares “off-limits” all economically productive or beneficial uses of land goes beyond what the relevant background principles would dictate, compensation must be paid to sustain it. Lucas v. S.C. Coastal Council, 505 U.S. 1003, 1030 (U.S. June 29, 1992).

Taking Defined

Proof of a taking by the governmental body is an essential element in an action for inverse condemnation. Taking is defined as follows: Entering upon private property for more than a momentary period and, under the warrant or color of legal authority, devoting it to a public use, or otherwise informally appropriating or injuriously affecting it in such way as substantially to oust the owner and deprive him of all beneficial enjoyment thereof. The determinative question in an alleged taking is the following: What has the owner lost? State v. Scott, 418 So. 2d 1032, 1033 (Fla. 2d DCA 1982)

The common thread running through the cases on inverse condemnation involves situations where a continuing trespass or nuisance ripens into a constitutional taking of property without the payment of just compensation. State v. Scott, 418 So. 2d 1032, 1033 (Fla. 2d DCA 1982).

Types of Property

In Kenworth, the court states “This provision applies equally to real and personal property.” In re Forfeiture of 1976 Kenworth Tractor Trailer Truck, 576 So. 2d 261, 261 (Fla. November 15, 1990). Generally, a precedent has been found by the Florida Courts for compensation being paid for personal property and inventory where the government has taken said property. See McClelland v. Town of Eustis, 88 Fla. 272, 102 So. 159 (1924) and Florida Power Corp. v. Wenzel. The court has also found that lost profits can result in compensable damages. Lee County v. T&H Associates Ltd., 395 So 2d 557 (Fla. 2d DCA 1981) Leaseholders are entitled to share proportionately in the condemnation settlement proceeds for the value of their leasehold interests so taken. Dama v. Record Bar, Inc., 512 So. 2d 206, 207 (Fla. Dist. Ct. App. 1st Dist. May 21, 1987).

The current Florida case law allows for both property owners and renters to be entitled to compensation. In general, if a lease contains a condemnation clause that spells out exactly what compensation is due tenants in the event of a condemnation of the rental property, the clause will be upheld by the courts. In general, tenants are always entitled to the cost of fixtures and equipment lost because of the forced relocation. If there is no enforceable condemnation clause, tenants may be entitled to receive a sizeable portion of compensation paid for the real estate.

 

We hold that HN5 a dispute over rent to be paid between a landlord and a government tenant arising after termination of a lease agreement, where the government retains use of the premises while the parties attempt to negotiate a new agreement, cannot be characterized as a taking. State v. Scott, 418 So. 2d 1032, 1034 (Fla. 2d DCA 1982) DISTINGUISH BETWEEN LEASEHOLD, GOVERNMENT DID NOT TERMINATE LEASE, RENT WAS TO CONTINUE TO BE PAID.

Read together a fundamental property interest in ones ability to transact business, to sell, alienate, or otherwise use ones property, whether personal, real, or intangible, as they wish exists, and thus restriction of one’s ability to perform such action should constitute a taking under Florida Law.

Public Use

The court posits in Dudley v. Orange County “In the exercise of eminent domain, property or an easement therein is taken from the owner and applied to public use because the use or enjoyment of such property or easement therein is beneficial to the public. In the exercise of the police power the owner is denied the unrestricted use or enjoyment of his property, or his property is taken from him because his use or enjoyment of such property is injurious to the public welfare. Under the police power the property is not, as a general rule, appropriated to another use, but is destroyed or its value impaired, while under the power of eminent domain it is transferred to the state to be enjoyed and used by it as its own.” Dudley v. Orange County, 137 So. 2d 859, 859, 1962 Fla. App. LEXIS 3378, *1 (Fla. Dist. Ct. App. 2d Dist. January 1, 1962).

 

Public use has been defined by the Florida Supreme Court which has found “a use to be public must be fixed and definite. It must be one in which the public, as such, has an interest, and the terms and manner of its enjoyment must be within the control of the State, independent of the rights of the private owner of the property appropriated to the use. The use of property cannot be said to be public if it can be gainsaid, denied, or withdrawn by the owner. The public interest must dominate the private gain.”

 

In Dudley, The court states “In the exercise of eminent domain, property or an easement therein is taken from the owner and applied to public use because the use or enjoyment of such property or easement therein is beneficial to the public. In the exercise of the police power the owner is denied the unrestricted use or enjoyment of his property, or his property is taken from him because his use or enjoyment of such property is injurious to the public welfare. Under the police power the property is not, as a general rule, appropriated to another use, but is destroyed or its value impaired, while under the power of eminent domain it is transferred to the state to be enjoyed and used by it as its own.” Dudley v. Orange County, 137 So. 2d 859, 859 (Fla. Dist. Ct. App. 2d Dist. January 1, 1962).

 

To destroy property because it is a public nuisance is not to appropriate it to public use, but to prevent any use of it by the owner, and to put an end to its existence, because it could not be used consistently with the maxim, sic utere tuo ut alienum non laedas (use your own property in such a manner as not to injure that of another). State Plant Bd. v. Smith, 110 So. 2d 401, 403 (Fla. 1959).

 

Full Compensation

Where the government takes private property, by taking or otherwise, it is to pay full compensation to the owner of that property, (including leasehold property interests). Full compensation has been found to include the payment of the property owner’s attorney’s fees and reasonable costs incurred to defend the claim which can include numerous experts such as appraisers, engineers, accountants, local planners, contractors, surveyors, market experts, architects, and a multitude of other disciplines depending on the issues and complexity involved in the valuation process. Florida is also one of the few states that provides for damages for business loss under certain conditions.

The common law and statutory provisions for inverse condemnation do not displace the constitutional requirement for just compensation when the state destroys privately owned property to aid some industry. In Florida, constitutional just compensation is a clear requisite to the act of destroying a businesses property or all economic benefit thereto. Because Fla. Const. art. X, § 6 is self-executing, it is immaterial that there is no statute specifically authorizing recovery for loss. Dep’t of Agric. & Consumer Servs. v. Borgoff, 35 So. 3d 84, 86 (Fla. 4th DCA 2010).

Generally (1) the fair market value of property for which there is a relevant market is the price which would be agreed to by an informed seller who is willing but not obligated to sell, and an informed buyer who is willing but not obligated to buy; and (2) the fair market value of property for which there is no relevant market is its value as determined by any method of valuation that is just and equitable. 4 Nichols on Eminent Domain § 12.02 (2020). Where a lease exists, the market value of the leasehold interest should their fore not be less then the cost of the leasehold, as that is the value which is currently being paid in the market.

Although fair market value is an important element in the compensation formula, it is not an exclusive standard. Fair market value is merely a tool to assist the court in determining what is full or just compensation, within the purview of constitutional requirements. Dep’t of Agric. & Consumer Servs. v. Polk, 568 So. 2d 35, 37 (Fla. 1990). In the absence of comparable sales, courts have upheld the use of the cost approach in determining the willing buyer/willing seller amount for purposes of Fla. Const. art. VII, § 4, including in those situations involving incomplete improvements. Fuchs v. Robbins, 738 So. 2d 338, 341 (Fla. Dist. Ct. App. 3d Dist. June 30, 1999).

Some cases have held that when a business is destroyed, the proper measure of damages is the market value of the business at the date of the loss. Awarding market value for a business that has been slowly reduced to nothing due to a defendant’s breach, thereby leaving the plaintiff without an adequate recovery, would be completely inequitable, and is not the law in Florida. Katz Deli of Aventura, Inc. v. Waterways Plaza, LLC, 183 So. 3d 374, 377 (Fla. Dist. Ct. App. 3d Dist. November 27, 2013)

When there is no market at the time of the taking due to partial state of development of the property taken, it is necessary to consider other evidence bearing on value and in some cases The prospective net revenue which could derive from the taken property at maturity is a proper measure of valuation. Dep’t of Agric. & Consumer Servs. v. Polk, 568 So. 2d 35, 37 (Fla. 1990).

Temporary Takings

While in Hillsborough County v. Gutierrez, the court noted that, unlike federal law and some state law, Florida does not recognize a “temporary” taking. By temporary, the court in Gutierrez clearly meant temporary in the sense that the condition which caused the property to be otherwise “taken” had been corrected. Hillsborough County v. Gutierrez, 433 So. 2d 1337 (Fla. 2d DCA 1983), Assocs. of Meadow Lake v. City of Edgewater, 706 So. 2d 50, 51 (Fla. 5th DCA 1998).

The Gutierrez case was however was substantively overruled in First Evangelical, where “the Supreme Court recognized a cause of action for a temporary taking for the period of time a zoning regulation (which) prevented a property owner from having any reasonable use of his property.” Assocs. of Meadow Lake v. City of Edgewater, 706 So. 2d 50, 51 (Fla. 5th DCA 1998) and First Evangelical Lutheran Church of Glendale v. Los Angeles County, 482 U.S. 304, 96 L. Ed. 2d 250, 107 S. Ct. 2378 (1987). The Florida Supreme Court subsequently found that a valid claim of inverse condemnation existed where the Florida Highway Patrol improperly seized a truck for a period of two years, clarifying despite the seizure ending after two years, it did not constitute a “temporary taking” allowing a denial of compensation. Kenworth Tractor Trailer Truck, Altered VIN 243340M, 576 So. 2d 261 (Fla. 1990).

The Court clarifies the current position of The Florida Courts providing that “In light of Kenworth, First Evangelical and Ashley, it appears to us that the non-recognition of temporary takings in Gutierrez is no longer valid and that Florida now recognizes temporary takings as being compensable under its constitution.” Assocs. of Meadow Lake v. City of Edgewater, 706 So. 2d 50, 52 (Fla. 5th DCA 1998).

In 1990, the Florida Supreme Court in In re Forfeiture of 1976 Kenworth Tractor Trailer Truck, Altered VIN 243340M, 576 So. 2d 261 (Fla. 1990), found that a meritorious claim of inverse condemnation existed where the Florida Highway Patrol improperly seized a truck for a period of two years. The fact that the physical appropriation ended after two years did not cause the “temporary  [*52]  taking” to not be compensable under the Florida Constitution. In light of Kenworth, First Evangelical and Ashley, it appears to us that the non-recognition of temporary takings in Gutierrez is no longer valid and that Florida now recognizes temporary takings as being compensable under its constitution. Assocs. of Meadow Lake v. City of Edgewater, 706 So. 2d 50, 51-52 (Fla. 5th DCA 1998)

Where the government’s activities have already worked a taking of all use of property, no subsequent action by the government can relieve it of the duty to provide compensation for the period during which the taking was effective. Invalidation of the ordinance without payment of the fair value for the use of the property during such period would be a constitutionally insufficient remedy. City of St. Petersburg v. Bowen, 675 So. 2d 626, 627 (Fla. 2d DCA 1996).

Similarly the United States Supreme court has found Where the regulation has already worked a taking of all use of property, no subsequent action by the government can relieve it of the duty to provide compensation for the period during which the taking was effective. Lucas v. S.C. Coastal Council, 505 U.S. 1003, 1006 (U.S. June 29, 1992).

Though a seizure by the United States of an industrial plant is only for a week or a month, the condemnation is complete and the United States must pay compensation for the temporary possession. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 582, 72 S. Ct. 863, 864 (1952)

Bert J. Harris Jr. Private Property Rights Protection Act

The Bert J. Harris Jr. Private Property Rights Protection Act was enacted in 1995 for the purpose of defining and clarifying compensation required to be paid under the Florida Constitution. The express intent of the legislature was to create “a separate and distinct cause of action from the law of takings” and to provide “for relief, or payment of compensation, when a new law, rule, regulation, or ordinance …as applied, unfairly affects real property.” Ch. 95-181, § 1(1), 1995 Fla. Laws at 1652.

 

Under The Florida Civil Defense Act, Fla. Stat. ch. 252, certain acts are authorized in an emergencies resulting from disasters caused by natural causes and to provide for the common defense and to protect the public peace, health and safety, and to preserve the lives and property of the people of the state. Dudley v. Orange County, 137 So. 2d 859, 859, 1962 Fla. App. LEXIS 3378, *1 (Fla. Dist. Ct. App. 2d Dist. January 1, 1962). The Florida Civil Defense Act (Act), Fla. Stat. ch. 252.18(2), provides that any political subdivision, except in cases of willful misconduct, gross negligence, or bad faith, engaged in any civilian defense activity, complying with the act, shall not be liable for damage to property as a result of such activity. Dudley v. Orange County, 137 So. 2d 859, 859 (Fla. Dist. Ct. App. 2d Dist. January 1, 1962). The Florida Civil Defense Act (act), Fla. Stat. ch. 252.07, provides for the taking of private property only in connection with the exercise of emergency powers granted in the event of an emergency contemplated or during enemy attack, and even then the act makes provision for determination and requires payment of just compensation. Dudley v. Orange County, 137 So. 2d 859, 859 (Fla. Dist. Ct. App. 2d Dist. January 1, 1962)

 

The limited waiver of sovereign immunity found in § 70.001(13), Fla. Stat., applies only where a governmental entity has applied a law, rule, regulation, or ordinance as specified. And in the statement of legislative intent found in § 70.001(1), the legislature recognized that it was the application of laws, regulations, and ordinances that sometimes inordinately burden real property, not ongoing requests for information, requests for revisions to plans, or a governmental entity’s change in position. Other subsections in § 70.001 likewise refer to the application of a law or regulation. § 70.001(3)(e)(2), (4)(d), (11). In determining legislative intent based on the plain language of a statute, the court reads the statute as a whole. Based on a reading of § 70.001 in its entirety, valid claims under the Bert J. Harris, Jr., Private Property Rights Protection Act, § 70.001, Fla. Stat. (2011), are predicated on the application of laws, rules, regulations, or ordinances. Bair v. City of Clearwater, 196 So. 3d 577, 579 (Fla. 2d DCA 2016).

 

Police Power

 

If the state, through the use of its police power, deprives the owner of property of the economically viable use of his property, then that property owner must be compensated and even such actions which constitute “Temporary takings are compensable.” City of St. Petersburg v. Bowen, 675 So. 2d 626, 627 (Fla. 2d DCA 1996). Regulations found by the courts to be invalid because they deprive landowners of substantially all use of their property without compensation are not ordinarily struck down as unconstitutional. The government is forced to choose between paying just compensation to keep the regulation in effect or removing the regulation. If the closure of an apartment building by the nuisance abatement board results in depriving the owner of all economic use of the property, even if this deprivation is temporary, then as a matter of law there is deemed to have been a taking and the property owner is entitled to be compensated for the economic loss suffered.” City of St. Petersburg v. Bowen, 675 So. 2d 626, 627 (Fla. 2d DCA 1996).

 

In Dudley, the court also explains that some limitation which deprive the ability to use ones property fall not under eminent domain, but under the states police power. The court states “Under the police power the property is not, as a general rule, appropriated to another use, but is destroyed or its value impaired, while under the power of eminent domain it is transferred to the state to be enjoyed and used by it as its own.” The court found that the exercise of the police power occurs where the property, or it’s unrestricted enjoyment, is taken because the use or enjoyment of such property is injurious to the public welfare. Dudley v. Orange County, 137 So. 2d 859, 859 (Fla. Dist. Ct. App. 2d Dist. January 1, 1962).

 

The court found that a proper exercise of the police power by the government does not require the payment of compensation as compliance with an enactment of the legislature in the exercise of the police power for purposes of health, morals, safety or welfare without compensation does not constitute a damaging or taking of property without just compensation within the meaning of the law of eminent domain. Dudley v. Orange County, 137 So. 2d 859, 859 (Fla. Dist. Ct. App. 2d Dist. January 1, 1962). The court points to several examples of where this might apply including fires where “neighbors and firemen freely trespass on the adjoining land, and houses are even blown up to prevent the spread of the conflagration”, instances of “(t)he danger of flood” or “the existence of a pestilence”.

 

It has long been established that in the exercise of its police power the state may summarily seize or destroy diseased cattle, contaminated food, obscene publications, illicit intoxicants, narcotics, prohibited weapons, gambling devices and paraphernalia, and other property that menaces the public health, safety or morals. The seizure of such goods is justified because the danger exists that the property deemed malefic will be distributed to the public to its injury, or used for an illegal purpose, absent a seizure and pending a proceeding to determine the propriety of the seizure. Cf. Metallic Flowers v. City of New York, 1957, 4 A.D.2d 292, 164 N.Y.S.2d 227.

 

In looking at a taking involving both healthy and unhealthy fruit trees during a time of a infectious epidemic infecting the trees the court found the destruction of the trees actually exhibiting physical symptoms of the bacterial disease and those within 125 feet of those trees did not constitute a taking, but that Polk is entitled to compensation for the remainder of the destroyed nursery stock. Bailey v. Van Pelt, 78 Fla. 337, 82 So. 789 (1919).

 

The exercise of some authority, discretion or judgment may be incident or necessary to the performance of administrative or ministerial duties; but such authority, discretion or judgment is subject to judicial review; and it is not among the powers of government that the constitution separates into departments. Bailey v. Van Pelt, 78 Fla. 337, 339, 82 So. 789, 790 (1919). By this standard the required closure of businesses regardless of whether any signs or symptoms of infection or spread emanating from that business exists should be likewise considered a compensable taking and an overreach of executive power.

 

Due Process

 

It is well settled that the concept of due process does not necessarily require the granting of a hearing prior to the taking of official action in the exercise of the police power. Where a compelling public interest justifies the action, the legislature may authorize summary action subject to later judicial review of the validity thereof. Conner v. Carlton, 223 So. 2d 324, 325 (Fla. 1969)

 

Brucellosis disease in domestic animals represents a dangerous subject of compelling public interest sufficient to justify making an exception to the fundamental rule of due process or just compensation to the extent of any overage in compensation benefits above $ 12.50 per domestic animal. Conner v. Carlton, 223 So. 2d 324, 325 (Fla. 1969)

 

Attorney’s and Expert Fees

 

A property owner whose property is condemned is “entitled to recover attorney’s fees and costs, as well as the value of the property that is taken” and “the condemning authority is required to pay all reasonable and necessary costs incurred in the defense of an eminent domain proceeding, including experts fees.” Seminole County v. Chandrinos, 816 So. 2d 1241, 1242 (Fla. Dist. Ct. App. 5th Dist. May 31, 2002).

Fla. Stat. ch. 92.231(1998) provides that any expert, who is qualified as such and who testifies in any cause, shall be allowed a fee. Fees for legal or expert witness services in litigation may either be “certain” or “contingent” (or some hybrid of the two). A fee is certain if it is payable without regard to the outcome of the suit; it is contingent if the obligation to pay depends on a particular result being obtained. City of Burlington v. Dague, 505 U.S. 557, 560-61, 120 L. Ed. 2d 449, 112 S. Ct. 2638 (1992). However, The taxation of general office expenses such as postage, long distance telephone calls, fax transmissions, and delivery services as costs in an eminent domain proceeding is improper. Seminole County v. Chandrinos, 816 So. 2d 1241, 1246 (Fla. Dist. Ct. App. 5th Dist. May 31, 2002)

A landowner does not have carte blanche to incur unnecessary fees, and not all expenses an owner incurs may be collected. Owners are entitled to expert witness fees, which go to the establishment of just compensation. Owners are not entitled to compensation for expert fees related to every conceivable use or possible configuration of the remaining property. The fees must be reasonably and necessarily incurred regarding a real, not merely a possible, issue in the case. Attorney’s fees may be awarded for time related to litigating the issue of entitlement to fees, but not for the time expended litigating the amount of fees. The time spent litigating the amount of an attorney’s fee is not compensable. Seminole County v. Chandrinos, 816 So. 2d 1241, 1242 (Fla. Dist. Ct. App. 5th Dist. May 31, 2002).

Under   a common contingent fee arrangement, the attorney or witness would receive no payment if the client loses. That clearly is not the case here. The fees to which Zook and Morris are entitled are not dependent under the contract on the outcome of the case. Zook and Morris simply agreed to accept whatever fee the court determined to be reasonable for any necessary services rendered. Seminole County v. Chandrinos, 816 So. 2d 1241, 1242 (Fla. Dist. Ct. App. 5th Dist. May 31, 2002).

Under ordinary circumstances, a contingency fee multiplier is not justified in family law, eminent domain, and estate and trust proceedings, although the basic lodestar method of computing a reasonable attorney’s fee may be an appropriate starting point. Standard Guaranty Ins. Co. v. Quanstrom, 555 So. 2d 828, 829 (Fla. January 11, 1990)

The following twelve factors, should be considered to determine a reasonable attorney’s fee in public policy enforcement cases: (1) the time and labor required; (2) the novelty and difficulty of the questions; (3) the skill requisite to perform the legal service properly; (4) the preclusion of other employment by the attorney due to acceptance of the case; (5) the custom fee, (6) whether the fee is fixed or contingent; (7) time limitations imposed by the client or the circumstances, (8) the amount involved and the results obtained; (9) the experience, reputation, and ability of the attorneys; (10) the “undesirability” of the case; (11) the nature and lengths of the professional relationship with the client; and (12) awards in similar cases. Further, in computing the fee, counsel for prevailing parties should be paid, as is traditional with attorneys compensated by a fee-paying client. It is important to note that the existence of a contingency fee arrangement is but one of the factors to be considered. Standard Guaranty Ins. Co. v. Quanstrom, 555 So. 2d 828, 829 (Fla. January 11, 1990). If the trial court determines that success was more likely than not at the outset, it may apply a multiplier of 1 to 1.5 in setting an attorney’s fee; if the trial court determines that the likelihood of success was approximately even at the outset, the trial judge may apply a multiplier of 1.5 to 2.0; and if the trial court determines that success was unlikely at the outset of the case, it may apply a multiplier of 2.0 to 2.5. This modification of the Rowe rule should apply to all cases in which the trial court has not set attorney’s fees as of the date of this opinion. The Rowe caps remain applicable in this category. The criteria and factors utilized in these cases must be consistent with the purpose of the fee-authorizing statute or rule. In this category, the legislature may be very specific in setting the criteria that can be considered. Standard Guaranty Ins. Co. v. Quanstrom, 555 So. 2d 828, 829 (Fla. January 11, 1990).

 

EMERGENCY

 

The Florida Civil Defense Act (act), Fla. Stat. ch. 252.07, provides for the taking of private property only in connection with the exercise of emergency powers granted in the event of an emergency contemplated or during enemy attack, and even then the act makes provision for determination and requires payment of just compensation. Dudley v. Orange Cty., 137 So. 2d 859, 859 (Fla. 2d DCA 1962)

 

In the exercise of the police power the owner is denied the unrestricted use or enjoyment of his property, or his property is taken from him because his use or enjoyment of such property is injurious to the public welfare. Under the police power the property is not, as a general rule, appropriated to another use, but is destroyed or its value impaired, while under the power of eminent domain it is transferred to the state to be enjoyed and used by it as its own. Dudley v. Orange Cty., 137 So. 2d 859, 859 (Fla. 2d DCA 1962)

 

Dudley v. Orange Cty., 137 So. 2d 859, 859 (Fla. 2d DCA 1962)

 

If the individual who enters and destroys private property happens to be a public officer whose duty it is to avert an impending calamity, the rights of the owner of the property to compensation are no greater than in the case of a private individual. The most familiar example of the exercise of that right is seen in case of a fire. The neighbors and firemen freely trespass on the adjoining land, and houses are even blown up to prevent the spread of the conflagration. The danger of flood or the existence of a pestilence may call for equally drastic action. Statutes sometimes provide for compensation in such cases, but unless the provisions of the statute are strictly complied with, the owner stands no better than he did at common law.

 

Even in those states in which the statutes regulate or specifically authorize the destruction of property in the presence of impending calamity, such legislation is not the exercise of a new power, but a recognition and continuation of the old power, and hence is due process of law and does not effect a taking of property without compensation in the constitutional sense.

 

Dudley v. Orange Cty., 137 So. 2d 859, 859 (Fla. 2d DCA 1962)

 

‘The Court is of the opinion that the action of the Defendant in erecting and maintaining the dikes in question was authorized both under the Civil Defense Act as well as under the police power. Although such action was lawful, not constituting a tort, yet if as a consequence of such action the lands of the Plaintiffs were flooded to the extent that it amounted to a taking from them, then under the decisions of our Appellate Courts they would be entitled to compensation which might be determined by this (Court) or by condemnation proceedings.

 

“‘After carefully studying the authorities furnished by counsel, I have reached the conclusion that the flooded condition is not permanent invasion of Plaintiff’s property but is only temporary which has resulted in damage to them but which is not recoverable at law. In order to constitute a taking for which the owners are entitled to compensation it must not only be actually, but permanent, which this is not. Dudley v. Orange Cty., 137 So. 2d 859, 860 (Fla. 2d DCA 1962)

 

The Act does, however, grant certain powers and immunities to the political subdivisions in the event of natural disaster and among them are: 1) Authorizes the state civil defense council to make available any equipment, services or facilities for use in any affected area. Section 252.12, Florida Statutes, F.S.A. 2) Authorizes political subdivisions to appropriate and expend funds, equipment, materials and supplies for civil defense purposes. Section 252.09(2)(a), Florida Statutes, F.S.A.

 

With respect to whether or not the actions of the County constituted a taking of the property of the plaintiffs for which the payment of just compensation is required by the Constitution, it would have been necessary for the court to have found that the flooding was a direct result of the dams of the County and the flooding must constitute an actual, permanent invasion of the land, amounting to an appropriation of, and not merely an injury to, the property. Dudley v. Orange Cty., 137 So. 2d 859, 863 (Fla. 2d DCA 1962)

 

The Dudley court found that no taking occurred because the record failed to show that the plaintiff’s property was continuously flooded for a long period of time. The flooding that took place in Dudley was not considered by the court to be so pervasive and continuous as to constitute a taking; it was an injury to, rather than an appropriation of, the plaintiff’s property. Dudley, however, did not consider whether a taking can occur when substantial flooding caused by a public body, is eventually remedied. We find, contrary to the trial court’s order, that HN1 remedial action by the governmental authority causing the flooding does not necessarily preclude an action for a temporary taking against that authority. Assocs. of Meadow Lake v. City of Edgewater, 706 So. 2d 50, 51 (Fla. 5th DCA 1998)

 

Application

 

 

Substantively, therefore, the Constitution, both State and Federal law does allow the taking of private businesses ability to operate, as has been done in response to the COVID-19 Crisis, but not without payment of full compensation as required by Florida Constitution. The required shutdown of business in our view undoubtably constitutes a taking by the Florida Government as a property interest exists in a private individuals ownership of a business, and the use of real property by that business for which it is entitled by virtue of ownership or leasehold.

 

 

 

 

 

 

 

Cases

*Needs to be Completed with cases from above*

Kelo v. City of New London

Florida Power Corp. v. Wenzel.

McClelland v. Town of Eustis, 88 Fla. 272, 102 So. 159 (1924)

Lee County v. T&H Associates Ltd., 395 So 2d 557 (Fla. 2d DCA 1981)

Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 413 (1922)

See William G. Earle, et al., Compensation, in FLORIDA EMINENT DOMAIN PRACTICE AND PROCEDURE 175 (4th ed. 1988) (discussing effect of zoning restrictions on analysis of highest and best use under eminent domain practice).

City of Miami Beach v. 8701 Collins Ave., Inc., 77 So. 2d 428 (Fla. 1954).

Edelstein v. Dade County, 171 So. 2d 611 (Fla. 3d Dist. Ct. App. 1965)

Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency, 535 U.S. 302 (2002)

Bradfordville Phipps Limited Partnership v. Leon County, 804 So. 2d 464 (Fla. 1st D.C.A. 2002) (inverse condemnation claim based on 22-month court-ordered delay in county’s issuance of permits was not ripe and did not establish deprivation of economically beneficial use of property)

Agripost, Inc. v. Metropolitan Miami-Dade County, 845 So. 2d 918 (Fla. 3d D.C.A. 2003) (revocation of unusual use permit for waste treatment facility due to violation of conditions of approval was not a taking).
See Lucas v. South Carolina Coastal Commission, 505 U.S. 1003 n.8 (1992).

City of Pompano Beach v. Yardarm Restaurant, Inc., 834 So. 2d 861 (Fla. 4th D.C.A. 2002) (city’s actions in obstructing issuance of hotel building permit, through delay in issuing permits, wrongful revocation of permits, and attempt to repeal special exception, did not rise to level of taking).

Tahoe-Sierra, 535 U.S. at 323 (Lucas establishes a narrow exception where takings liability will result from a permanent deprivation of all beneficial use),

City of North Miami Beach v. Reed, 749 So. 2d 1275 (Fla. 3d D.C.A. 2000) (taking resulted when city installed curbing along plaintiffs’ frontage, thereby denying all vehicular access to the property).

Clay v. Monroe County, 849 So. 2d 363, 365-66 (Fla. 3d D.C.A. 2003).

City of Riviera Beach v. Shillingburg, 659 So. 2d 1174 (Fla. 4th D.C.A. 1995).

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