“Fourscore and seven years ago our fathers brought forth on this continent a new nation, conceived in liberty and dedicated to the proposition that all men are created equal. Now we are engaged in a great civil war, testing whether that nation or any nation so conceived and so dedicated can long endure. We are met on a great battlefield of that war. We have come to dedicate a portion of that field as a final resting-place for those who here gave their lives that that nation might live. It is altogether fitting and proper that we should do this. But in a larger sense, we cannot dedicate, we cannot consecrate, we cannot hallow this ground. The brave men, living and dead who struggled here have consecrated it far above our poor power to add or detract. The world will little note nor long remember what we say here, but it can never forget what they did here. It is for us the living rather to be dedicated here to the unfinished work which they who fought here have thus far so nobly advanced. It is rather for us to be here dedicated to the great task remaining before us–that from these honored dead we take increased devotion to that cause for which they gave the last full measure of devotion–that we here highly resolve that these dead shall not have died in vain, that this nation under God shall have a new birth of freedom, and that government of the people, by the people, for the people shall not perish from the earth.”
(f) Contingent Fees. As to contingent fees:
(1) A fee may be contingent on the outcome of the matter for which the service is rendered, except in a matter in which a contingent fee is prohibited by subdivision (f)(3) or by law. A contingent fee agreement shall be in writing and shall state the method by which the fee is to be determined, including the percentage or percentages that shall accrue to the lawyer in the event of settlement, trial, or appeal, litigation and other expenses to be deducted from the recovery, and whether such expenses are to be deducted before or after the contingent fee is calculated. Upon conclusion of a contingent fee matter, the lawyer shall provide the client with a written statement stating the outcome of the matter and, if there is a recovery, showing the remittance to the client and the method of its determination.
(2) Every lawyer who accepts a retainer or enters into an agreement, express or implied, for compensation for services rendered or to be rendered in any action, claim, or proceeding whereby the lawyer’s compensation is to be dependent or contingent in whole or in part upon the successful prosecution or settlement thereof shall do so only where such fee arrangement is reduced to a written contract, signed by the client, and by a lawyer for the lawyer or for the law firm representing the client. No lawyer or firm may participate in the fee without the consent of the client in writing. Each participating lawyer or law firm shall sign the contract with the client and shall agree to assume joint legal responsibility to the client for the performance of the services in question as if each were partners of the other lawyer or law firm involved. The client shall be furnished with a copy of the signed contract and any subsequent notices or consents. All provisions of this rule shall apply to such fee contracts.
(3) A lawyer shall not enter into an arrangement for, charge, or collect:(A) any fee in a domestic relations matter, the payment or amount of which is contingent upon the securing of a divorce or upon the amount of alimony or support, or property settlement in lieu thereof; or
(B) a contingent fee for representing a defendant in a criminal case.(4) A lawyer who enters into an arrangement for, charges, or collects any fee in an action or claim for personal injury or for property damages or for death or loss of services resulting from personal injuries based upon tortious conduct of another, including products liability claims, whereby the compensation is to be dependent or contingent in whole or in part upon the successful prosecution or settlement thereof shall do so only under the following requirements:(A) The contract shall contain the following provisions:(i) “The undersigned client has, before signing this contract, received and read the statement of client’s rights and understands each of the rights set forth therein. The undersigned client has signed the statement and received a signed copy to refer to while being represented by the undersigned attorney(s).”
(ii) “This contract may be cancelled by written notification to the attorney at any time within 3 business days of the date the contract was signed, as shown below, and if cancelled the client shall not be obligated to pay any fees to the attorney for the work performed during that time. If the attorney has advanced funds to others in representation of the client, the attorney is entitled to be reimbursed for such amounts as the attorney has reasonably advanced on behalf of the client.”(B) The contract for representation of a client in a matter set forth in subdivision (f)(4) may provide for a contingent fee arrangement as agreed upon by the client and the lawyer, except as limited by the following provisions:(i) Without prior court approval as specified below, any contingent fee that exceeds the following standards shall be presumed, unless rebutted, to be clearly excessive:a. Before the filing of an answer or the demand for appointment of arbitrators or, if no answer is filed or no demand for appointment of arbitrators is made, the expiration of the time period provided for such action:1. 33 1/3% of any recovery up to $1 million; plus
2. 30% of any portion of the recovery between $1 million and $2 million; plus
3. 20% of any portion of the recovery exceeding $2 million.b. After the filing of an answer or the demand for appointment of arbitrators or, if no answer is filed or no demand for appointment of arbitrators is made, the expiration of the time period provided for such action, through the entry of judgment:1. 40% of any recovery up to $1 million; plus
2. 30% of any portion of the recovery between $1 million and $2 million; plus
3. 20% of any portion of the recovery exceeding $2 million.c. If all defendants admit liability at the time of filing their answers and request a trial only on damages:1. 33 1/3% of any recovery up to $1 million; plus
2. 20% of any portion of the recovery between $1 million and $2 million; plus
3. 15% of any portion of the recovery exceeding $2 million.d. An additional 5% of any recovery after institution of any appellate proceeding is filed or post-judgment relief or action is required for recovery on the judgment.(ii) If any client is unable to obtain an attorney of the client’s choice because of the limitations set forth in subdivision (f)(4)(B)(i), the client may petition the court in which the matter would be filed, if litigation is necessary, or if such court will not accept jurisdiction for the fee division, the circuit court wherein the cause of action arose, for approval of any fee contract between the client and an attorney of the client’s choosing. Such authorization shall be given if the court determines the client has a complete understanding of the client’s rights and the terms of the proposed contract. The application for authorization of such a contract can be filed as a separate proceeding before suit or simultaneously with the filing of a complaint. Proceedings thereon may occur before service on the defendant and this aspect of the file may be sealed. A petition under this subdivision shall contain a certificate showing service on the client and, if the petition is denied, a copy of the petition and order denying the petition shall be served on The Florida Bar in Tallahassee by the member of the bar who filed the petition. Authorization of such a contract shall not bar subsequent inquiry as to whether the fee actually claimed or charged is clearly excessive under subdivisions (a) and (b).
(iii) Subject to the provisions of 4-1.5(f)(4)(B)(i) and (ii) a lawyer who enters into an arrangement for, charges, or collects any fee in an action or claim for medical liability whereby the compensation is dependent or contingent in whole or in part upon the successful prosecution or settlement thereof shall provide the language of article I, section 26 of the Florida Constitution to the client in writing and shall orally inform the client that:a. Unless waived, in any medical liability claim involving a contingency fee, the claimant is entitled to receive no less than 70% of the first $250,000 of all damages received by the claimant, exclusive of reasonable and customary costs, whether received by judgment, settlement, or otherwise, and regardless of the number of defendants. The claimant is entitled to 90% of all damages in excess of $250,000, exclusive of reasonable and customary costs and regardless of the number of defendants.
b. If a lawyer chooses not to accept the representation of a client under the terms of article I, section 26 of the Florida Constitution, the lawyer shall advise the client, both orally and in writing of alternative terms, if any, under which the lawyer would accept the representation of the client, as well as the client’s right to seek representation by another lawyer willing to accept the representation under the terms of article I, section 26 of the Florida Constitution, or a lawyer willing to accept the representation on a fee basis that is not contingent.
c. If any client desires to waive any rights under article I, section 26 of the Florida Constitution in order to obtain a lawyer of the client’s choice, a client may do so by waiving such rights in writing, under oath, and in the form provided in this rule. The lawyer shall provide each client a copy of the written waiver and shall afford each client a full and complete opportunity to understand the rights being waived as set forth in the waiver. A copy of the waiver, signed by each client and lawyer, shall be given to each client to retain, and the lawyer shall keep a copy in the lawyer’s file pertaining to the client. The waiver shall be retained by the lawyer with the written fee contract and closing statement under the same conditions and requirements provided in 4-1.5(f)(5).
WAIVER OF THE CONSTITUTIONAL RIGHT PROVIDED IN
ARTICLE I, SECTION 26 OF THE FLORIDA CONSTITUTION
On November 2, 2004, voters in the State of Florida approved The Medical Liability Claimant’s Compensation Amendment that was identified as Amendment 3 on the ballot. The amendment is set forth below:
The Florida Constitution Article I, Section 26 is created to read “Claimant’s right to fair compensation.” In any medical liability claim involving a contingency fee, the claimant is entitled to receive no less than 70% of the first $250,000 in all damages received by the claimant, exclusive of reasonable and customary costs, whether received by judgment, settlement or otherwise, and regardless of the number of defendants. The claimant is entitled to 90% of all damages in excess of $250,000, exclusive of reasonable and customary costs and regardless of the number of defendants. This provision is self-executing and does not require implementing legislation.
The undersigned client understands and acknowledges that (initial each provision):
_____ I have been advised that signing this waiver releases an important constitutional right; and
_____ I have been advised that I may consult with separate counsel before signing this waiver; and that I may request a hearing before a judge to further explain this waiver; and
_____ By signing this waiver I agree to an increase in the attorney fee that might otherwise be owed if the constitutional provision listed above is not waived. Without prior court approval, the increased fee that I agree to may be up to the maximum contingency fee percentages set forth in Rule Regulating The Florida Bar 4-1.5(f)(4)(B)(i). Depending on the circumstances of my case, the maximum agreed upon fee may range from 33 1/3% to 40% of any recovery up to $1 million; plus 20% to 30% of any portion of the recovery between $1 million and $2 million; plus 15% to 20% of any recovery exceeding $2 million; and
_____ I have three (3) business days following execution of this waiver in which to cancel this waiver; and
_____ I wish to engage the legal services of the lawyers or law firms listed below in an action or claim for medical liability the fee for which is contingent in whole or in part upon the successful prosecution or settlement thereof, but I am unable to do so because of the provisions of the constitutional limitation set forth above. In consideration of the lawyers’ or law firms’ agreements to represent me and my desire to employ the lawyers or law firms listed below, I hereby knowingly, willingly, and voluntarily waive any and all rights and privileges that I may have under the constitutional provision set forth above, as apply to the contingency fee agreement only. Specifically, I waive the percentage restrictions that are the subject of the constitutional provision and confirm the fee percentages set forth in the contingency fee agreement; and
____ I have selected the lawyers or law firms listed below as my counsel of choice in this matter and would not be able to engage their services without this waiver; and I expressly state that this waiver is made freely and voluntarily, with full knowledge of its terms, and that all questions have been answered to my satisfaction.
ACKNOWLEDGMENT BY CLIENT FOR PRESENTATION TO THE COURT
The undersigned client hereby acknowledges, under oath, the following:
I have read and understand this entire waiver of my rights under the constitutional provision set forth above.
I am not under the influence of any substance, drug, or condition (physical, mental, or emotional) that interferes with my understanding of this entire waiver in which I am entering and all the consequences thereof.
I have entered into and signed this waiver freely and voluntarily.
I authorize my lawyers or law firms listed below to present this waiver to the appropriate court, if required for purposes of approval of the contingency fee agreement. Unless the court requires my attendance at a hearing for that purpose, my lawyers or law firms are authorized to provide this waiver to the court for its consideration without my presence.
Dated this ________ day of ________________________, ____.
Sworn to and subscribed before me this _____ day of _______________, _______ by _______________________________, who is personally known to me, or has produced the following identification: ___________________________________.
My Commission Expires:
Dated this ______ day of __________________________, ____.
(C) Before a lawyer enters into a contingent fee contract for representation of a client in a matter set forth in this rule, the lawyer shall provide the client with a copy of the statement of client’s rights and shall afford the client a full and complete opportunity to understand each of the rights as set forth therein. A copy of the statement, signed by both the client and the lawyer, shall be given to the client to retain and the lawyer shall keep a copy in the client’s file. The statement shall be retained by the lawyer with the written fee contract and closing statement under the same conditions and requirements as subdivision (f)(5).
(D) As to lawyers not in the same firm, a division of any fee within subdivision (f)(4) shall be on the following basis:(i) To the lawyer assuming primary responsibility for the legal services on behalf of the client, a minimum of 75% of the total fee.(ii) To the lawyer assuming secondary responsibility for the legal services on behalf of the client, a maximum of 25% of the total fee. Any fee in excess of 25% shall be presumed to be clearly excessive.
(iii) The 25% limitation shall not apply to those cases in which 2 or more lawyers or firms accept substantially equal active participation in the providing of legal services. In such circumstances counsel shall apply to the court in which the matter would be filed, if litigation is necessary, or if such court will not accept jurisdiction for the fee division, the circuit court wherein the cause of action arose, for authorization of the fee division in excess of 25%, based upon a sworn petition signed by all counsel that shall disclose in detail those services to be performed. The application for authorization of such a contract may be filed as a separate proceeding before suit or simultaneously with the filing of a complaint, or within 10 days of execution of a contract for division of fees when new counsel is engaged. Proceedings thereon may occur before service of process on any party and this aspect of the file may be sealed. Authorization of such contract shall not bar subsequent inquiry as to whether the fee actually claimed or charged is clearly excessive. An application under this subdivision shall contain a certificate showing service on the client and, if the application is denied, a copy of the petition and order denying the petition shall be served on The Florida Bar in Tallahassee by the member of the bar who filed the petition. Counsel may proceed with representation of the client pending court approval.
(iv) The percentages required by this subdivision shall be applicable after deduction of any fee payable to separate counsel retained especially for appellate purposes.(5) In the event there is a recovery, upon the conclusion of the representation, the lawyer shall prepare a closing statement reflecting an itemization of all costs and expenses, together with the amount of fee received by each participating lawyer or law firm. A copy of the closing statement shall be executed by all participating lawyers, as well as the client, and each shall receive a copy. Each participating lawyer shall retain a copy of the written fee contract and closing statement for 6 years after execution of the closing statement. Any contingent fee contract and closing statement shall be available for inspection at reasonable times by the client, by any other person upon judicial order, or by the appropriate disciplinary agency.
(6) In cases in which the client is to receive a recovery that will be paid to the client on a future structured or periodic basis, the contingent fee percentage shall be calculated only on the cost of the structured verdict or settlement or, if the cost is unknown, on the present money value of the structured verdict or settlement, whichever is less. If the damages and the fee are to be paid out over the long term future schedule, this limitation does not apply. No attorney may negotiate separately with the defendant for that attorney’s fee in a structured verdict or settlement when separate negotiations would place the attorney in a position of conflict.
(g) Division of Fees Between Lawyers in Different Firms. Subject to the provisions of subdivision (f)(4)(D), a division of fee between lawyers who are not in the same firm may be made only if the total fee is reasonable and:
(1) the division is in proportion to the services performed by each lawyer; or
(2) by written agreement with the client:
(A) each lawyer assumes joint legal responsibility for the representation and agrees to be available for consultation with the client; and
(B) the agreement fully discloses that a division of fees will be made and the basis upon which the division of fees will be made.
(h) Credit Plans. A lawyer or law firm may accept payment under a credit plan. No higher fee shall be charged and no additional charge shall be imposed by reason of a lawyer’s or law firm’s participation in a credit plan.
(i) Arbitration Clauses. A lawyer shall not make an agreement with a potential client prospectively providing for mandatory arbitration of fee disputes without first advising that person in writing that the potential client should consider obtaining independent legal advice as to the advisability of entering into an agreement containing such mandatory arbitration provisions. A lawyer shall not make an agreement containing such mandatory arbitration provisions unless the agreement contains the following language in bold print:
NOTICE: This agreement contains provisions requiring arbitration of fee disputes. Before you sign this agreement you should consider consulting with another lawyer about the advisability of making an agreement with mandatory arbitration requirements. Arbitration proceedings are ways to resolve disputes without use of the court system. By entering into agreements that require arbitration as the way to resolve fee disputes, you give up (waive) your right to go to court to resolve those disputes by a judge or jury. These are important rights that should not be given up without careful consideration.
STATEMENT OF CLIENT’S RIGHTS
FOR CONTINGENCY FEES
Before you, the prospective client, arrange a contingent fee agreement with a lawyer, you should understand this statement of your rights as a client. This statement is not a part of the actual contract between you and your lawyer, but, as a prospective client, you should be aware of these rights:
1. There is no legal requirement that a lawyer charge a client a set fee or a percentage of money recovered in a case. You, the client, have the right to talk with your lawyer about the proposed fee and to bargain about the rate or percentage as in any other contract. If you do not reach an agreement with 1 lawyer you may talk with other lawyers.
2. Any contingent fee contract must be in writing and you have 3 business days to reconsider the contract. You may cancel the contract without any reason if you notify your lawyer in writing within 3 business days of signing the contract. If you withdraw from the contract within the first 3 business days, you do not owe the lawyer a fee although you may be responsible for the lawyer’s actual costs during that time. If your lawyer begins to represent you, your lawyer may not withdraw from the case without giving you notice, delivering necessary papers to you, and allowing you time to employ another lawyer. Often, your lawyer must obtain court approval before withdrawing from a case. If you discharge your lawyer without good cause after the 3-day period, you may have to pay a fee for work the lawyer has done.
3. Before hiring a lawyer, you, the client, have the right to know about the lawyer’s education, training, and experience. If you ask, the lawyer should tell you specifically about the lawyer’s actual experience dealing with cases similar to yours. If you ask, the lawyer should provide information about special training or knowledge and give you this information in writing if you request it.
4. Before signing a contingent fee contract with you, a lawyer must advise you whether the lawyer intends to handle your case alone or whether other lawyers will be helping with the case. If your lawyer intends to refer the case to other lawyers, the lawyer should tell you what kind of fee sharing arrangement will be made with the other lawyers. If lawyers from different law firms will represent you, at least 1 lawyer from each law firm must sign the contingent fee contract.
5. If your lawyer intends to refer your case to another lawyer or counsel with other lawyers, your lawyer should tell you about that at the beginning. If your lawyer takes the case and later decides to refer it to another lawyer or to associate with other lawyers, you should sign a new contract that includes the new lawyers. You, the client, also have the right to consult with each lawyer working on your case and each lawyer is legally responsible to represent your interests and is legally responsible for the acts of the other lawyers involved in the case.
6. You, the client, have the right to know in advance how you will need to pay the expenses and the legal fees at the end of the case. If you pay a deposit in advance for costs, you may ask reasonable questions about how the money will be or has been spent and how much of it remains unspent. Your lawyer should give a reasonable estimate about future necessary costs. If your lawyer agrees to lend or advance you money to prepare or research the case, you have the right to know periodically how much money your lawyer has spent on your behalf. You also have the right to decide, after consulting with your lawyer, how much money is to be spent to prepare a case. If you pay the expenses, you have the right to decide how much to spend. Your lawyer should also inform you whether the fee will be based on the gross amount recovered or on the amount recovered minus the costs.
7. You, the client, have the right to be told by your lawyer about possible adverse consequences if you lose the case. Those adverse consequences might include money that you might have to pay to your lawyer for costs and liability you might have for attorney’s fees, costs, and expenses to the other side.
8. You, the client, have the right to receive and approve a closing statement at the end of the case before you pay any money. The statement must list all of the financial details of the entire case, including the amount recovered, all expenses, and a precise statement of your lawyer’s fee. Until you approve the closing statement your lawyer cannot pay any money to anyone, including you, without an appropriate order of the court. You also have the right to have every lawyer or law firm working on your case sign this closing statement.
9. You, the client, have the right to ask your lawyer at reasonable intervals how the case is progressing and to have these questions answered to the best of your lawyer’s ability.
10. You, the client, have the right to make the final decision regarding settlement of a case. Your lawyer must notify you of all offers of settlement before and after the trial. Offers during the trial must be immediately communicated and you should consult with your lawyer regarding whether to accept a settlement. However, you must make the final decision to accept or reject a settlement.
11. If at any time you, the client, believe that your lawyer has charged an excessive or illegal fee, you have the right to report the matter to The Florida Bar, the agency that oversees the practice and behavior of all lawyers in Florida. For information on how to reach The Florida Bar, call 850/561-5600, or contact the local bar association. Any disagreement between you and your lawyer about a fee can be taken to court and you may wish to hire another lawyer to help you resolve this disagreement. Usually fee disputes must be handled in a separate lawsuit, unless your fee contract provides for arbitration. You can request, but may not require, that a provision for arbitration (under Chapter 682, Florida Statutes, or under the fee arbitration rule of the Rules Regulating The Florida Bar) be included in your fee contract.
Workers compensation lawyers who represent workers injured on the job have recently gotten good news from the Florida Supreme Court. That good news was even better for the injured worker because these decisions expanded wage loss benefits and fees for lawyer who fight to get benefits for these workers. Those fees, contingency fees, are paid by the insurance companies when the employee’s lawyers win the case.
In 2009 the Florida legislature limited fees to these lawyers so much that workers were effectively denied benefits because no lawyer could afford to take on cases involving the denial of certain low cost benefits. The statue went so far as to make it a crime for a lawyer to contract with an injured worker for fees that were not approved by a judge of compensation claims. Judges are bound by the statute regulating payment of fees to lawyers representing the employee.
Among the many absurd results this law caused was one where the lawyer litigated the workers entitlement to medical benefits valued at $850.00. The lawyer prevailed and got the statutory fee which worked out to $1.53 per hour. Unsatisfied, and willing and able to appeal the lawyer got the statute declared unconstitutional.
Another very important case found unconstitutional a portion of the statute which dealt with the length of time the employer’s workers compensation carrier would have to pay wage benefits. The law which was declared unconstitutional limited wage benefits to 104 weeks. The Florida Supreme Court ordered that an earlier version of the law be implemented which provided for 260 weeks of wage benefits.
Workers rights in Florida are very limited. Employers have immunity from negligence claims when they provide workers compensation benefits, and because Florida is a “right to work” state, unions are not as strong as they could be. These recent Supreme Court decisions help protect the worker, even if in only a small way. On the job injuries can be catastrophic for workers. Know your rights. If you have questions, call a lawyer, or the Bureau of Employee Assistance 800-342-1742. The web address for this State office is http://www.myfloridacfo.com/division/wc/employee/eao.htm
By Jennifer B. Springfield
In 1998 due to the mounting realization that a twenty-year planning period was too short and the existing planning tools were too constraining, in a fast growing state, to adequately protect natural systems and avoid piece-meal planning, the Florida Legislature created section 163.3245, Florida Statutes (FS), which established an experimental pilot program titled Optional sector plans, that lasted for thirteen years. (fn 1 & 2) It had become evident that a more “flexible, but principled” approach to land planning was needed in order to achieve the state’s conservation goals and develop livable communities utilizing large tracts of undeveloped land predominantly still under single ownership. In 2011, after several studies appraising the results of the pilot program, the Legislature amended section 163.3245, FS, establishing sector plans as a new tool for “long-term planning for conservation, development, and agriculture on a landscape scale.” (fn 3)
In doing so, the Legislature expressed its intent that sector planning promote “Innovation,” “facilitate protection of regionally significant resources,” and be “aspirational.” (fn 4) In an article that appeared in the June 2014 Florida Bar Journal, the authors stated:
The best sector plans incorporate long-term commitments for preservation of environmental resources and agricultural lands as well as policy commitments that emphasize strong urban form to create livable communities and a balanced transportation network. In essence, sector plans provide an opportunity to plan in a manner that avoids the sprawling development patterns employed in Florida during the last fifty years. They also have an economic driver that is important to the larger community, and they are products of community-based negotiation by public and private partners in open and collaborative processes. (fn 5)
The statute establishes two separate planning phases – long-term master planning that changes the existing land use designations in the local comprehensive plan for the entire area, and subsequent detailed specific area planning for sub-areas of at least 1000 acres that provide a detailed plan of development consistent with the long-term master plan. While there are content requirements for these plans, there are no statutory criteria to guide the local government in deciding whether to approve or deny a proposed sector plan. Consistency with the existing comprehensive is not required and the applicant is “not required to demonstrate need based upon projected population growth or on any other basis.” (fn 6) The requirements for the initial long-term master planning portion are designed to provide a broad framework and general direction for the conservation, development, and agricultural activities envisioned. The items that must be generally identified in the long-tern master plan include:
• A map generally depicting the urban, agricultural, and conservation areas with densities and intensities and emphasizing sound urban form as the basis for development;
• Water supplies needed and available sources, including water resource and supply development projects and water conservation measures;
• Transportation facilities needed with an emphasis on multi-modal systems to optimize mobility;
• Regionally significant public facilities needed to support the land uses and procedures to mitigate impacts on public facilities;
• Regionally significant natural resources and procedures for their protection and conservation; and
• Procedures and policies to facilitate intergovernmental coordination to address extra-jurisdictional impacts. (fn 7)
The long-term master plan is subject to review by the Department of Economic Opportunity (DEO), the state land-planning agency, as to whether it complies with the statutory requirements and whether it “will adversely impact important state resources and facilities:” DEO may initiate a formal administrative hearing process regarding these issues, as well as can a third party.
The statute also attempts to link land, water and transportation planning, which was missing in the past and created many difficult development issues amongst the state, regional and local governments. For instance, the water needs, sources and water resource and supply development projects identified in the long-term master plan must be incorporated into the applicable water management district’s water supply plans, and any MPO long-range transportation plan must be consistent with the long-term master plan to the maximum extent feasible.
Once a long-term master plan is approved and in place, local government approval of two or more detailed specific area plans (DSAP) may be sought as local development orders, which are not subject to state review, but must be consistent with the long-term master plan. At this stage, the statute requires detailed and specific identification and analysis of the following items within the specific area plan boundaries:
• Maximum and minimum densities and intensities of use and distribution, extent and location of future land uses emphasizing compact urban development;
• Water resource development and water supply development projects and related infrastructure and water conservation measures to address water needs;
• Transportation facilities to serve future land uses promoting multiple modes of transportation;
• Other regionally significant public facilities, including those outside the host government, and impacts of future land uses and required improvements;
• Major public facilities needed to serve development, including developer contributions, in the local government’s five-year capital improvements schedule;
• Measures to ensure the protection and restoration and management of lands identified for permanent preservation through recording conservation easements, to ensure that off-site environmental impacts are avoided or minimized and mitigated; and
• Procedures to facilitate intergovernmental coordination to address extra-jurisdictional impacts. (fn 8)
DEO may appeal a local government’s approval of a DSAP to the Land and Water Adjudicatory Commission on the grounds that it is not consistent with the comprehensive plan or the long-term master plan. An aggrieved or adversely affected party may also challenge the development order in court pursuant to § 163.3215, FS.
Local governments are primarily responsible for enforcing DSAP’s, but the DEO may initiate administrative or judicial action pursuant to §380.11, FS, if it believes that a violation has occurred or is about to occur. (fn 9)
1. An application for approval of the long-term master plan for Plum Creek’s Envision Alachua Sector Plan is currently being considered by Alachua County.
2. Ch. 98-176, § 15 at 20, Laws of Florida.
3. § 163.3245(1), Fla. Stat. (2015)
4. § 163.3245(1), Fla. Stat. (2015)
5. Sector Plans, Powell, David L., Gary K. Hunter, Jr. and Robert M. Rhodes, The Florida Bar 2014
6. § 163.3245(3)(a) and (b), Fla. Stat. (2015)
7. § 163.3245(3)(a), Fla. Stat. (2015)
8. § 163.3245(3)(b), Fla. Stat. (2015)
9. § 163.3245(5), Fla. Stat. (2015)
You’ve probably heard the term and know that it relates to water, but what precisely are “riparian rights,” who has these rights, and what is the nature of these rights? Riparian rights are those rights which are incident to lands that border upon “navigable waters.” Riparian rights include such things as the right to ingress and egress the waters, and to boat, bathe and fish in the waters. Riparian rights are not proprietary in nature; they inure to the benefit of the upland owner, but they are not owned.
Navigable waters consist of freshwater lakes, rivers and streams, surveyed and owned by the State of Florida. They typically do not include non-meandered lakes, ponds, swamps or overflowed lands – the land under which has been conveyed to a private person without a reservation of any public rights. The State also owns the submerged lands under its navigable waters, as well as any islands, sandbars, and shallow banks within them. Although the State owns these lands and waters, they are considered to be held in trust for all of its citizens under what is known as the Public Trust Doctrine.
Under the Public Trust Doctrine, the State also owns coastal waters and lands within the Atlantic Ocean and the Gulf of Mexico. The State is said to own everything below the mean high water line and the upland landowner bordering the coastal waters owns everything above the mean high water line. Coastal upland owners have what is referred to as “littoral rights.” Littoral rights are very similar to riparian rights. Littoral rights include navigation, bathing and fishing, and also the rights of access to the water, reasonable use of the water, and an unobstructed view of the water. Further, coastal upland owners are subject to the natural forces of accretion and reliction, under the principles of which an upland owner and/or the State may gain and/or lose land area over time depending upon whether sand is deposited on the coast or eroded from the coastline. And you thought riparian rights had something to do with reptiles?
By Jennifer B. Springfield
What is hydraulic fracturing, aka fracking, or high-pressure well stimulation? A simple definition is the extraction of natural gas and oil deposits (difficult to access because they are trapped within tight pores of rocks deep underground) by injecting water, sand and chemicals into drilled holes or wells which serves to fracture the rock and allow these resources to be recovered. A more technical definition is all stages of a well intervention performed by injecting more than 100,000 gallons total of fluid into a rock formation at high pressure that exceeds the fracture gradient of the rock formation in order to propagate fractures in such formation to increase production at an oil or gas well by improving the flow of hydrocarbons from the formation into the wellbore.(1) The rock/resources from which oil and natural gas are recovered using fracking technology are referred to as coalbed methane, shale gas and oil, and tight sandstones or tight gas and oil.
Why is this technology controversial in the U.S.? In the U.S., the use of hydraulic fracturing contributes to energy independence and provides many jobs. It also poses a number of environmental risks, such contamination of ground and surface water from leaking wells or surface spills, air pollution from the escape of methane gas, use of limited water supplies, and increased seismic activity (rare).
Is hydraulic fracturing being used in Florida to recover oil and gas? Historically, it has rarely been used, but there exists within the industry an interest in exploring the greater use of hydraulic fracturing in two areas of the state where oil and gas deposits have already been removed using conventional methods. One is an area located in the western panhandle known as the Jay Trend and the other is an area in southwest Florida known as the Sunniland Trend, where standard production peaked in the 1970’s.(2)
How are state and local governments in the U.S. addressing the use of high-pressure well stimulation to extract oil and gas resources from the ground? At least one state, New York, has banned hydraulic fracturing.(3) In other places where its use is fairly widespread, both state and local government regulations are common, but there are several states that have preempted its regulation to their executive branch.(4) Under current law in Florida,(5) an “operator” using hydraulic fracturing must notify the Department of Environmental Protection (FDEP) before beginning any “workover” on an oil or gas well, but no permit and, therefore, no inspection is required. Several local governments have also gone on record as being opposed to hydraulic fracturing (6) but none have attempted to regulate the activity.
Several bills were filed during the 2015 Legislative Session to either ban (7) hydraulic fracturing or regulate it.(8) The House and Senate bills proposing to ban hydraulic fracturing were each filed, referred to a committee and introduced in committee, but no action was taken. The House bill proposing greater regulation of hydraulic fracturing, which also contained a local government preemption clause, became engrossed and was headed to a final vote by the full chamber. The Senate, which substituted the House’s third committee substitute for its version, was read a second time and debated on the Senate floor. If passed, the changes made to existing law would have included the following (9):
• A permit from FDEP would be required prior to performing high-pressure well stimulation to increase production at an oil or gas well.
• Past violations could be considered by FDEP and used as a basis for denial of the application or the imposition of additional, special conditions.
• Inspections by FDEP would be required.
• The national chemical registry known as FracFocus would be designated as the state’s registry for recording and tracking chemicals used.
• Permit holders would be required to report the chemicals used.
• FDEP would be required to conduct a study on the potential effects of hydraulic fracturing.
• Local governments would be prohibited from adopting or establishing programs to issue permits for any activity related to oil and gas drilling, exploration or production.
Hydraulic fracturing will continue to be controversial in Florida and elected officials will be required to address its use or nonuse in the near time. Those persons living nearby these sites who fear the effects are likely to continue to demand that regulators and well operators comply with any applicable laws in effect.
1.CS/CS/CS/HB 1205, Engrossed 1, Florida House of Representatives 2015 Legislative Session.
2.Industry Perspectives on Laws and Regulations Governing Oil and Natural Gas Production in Florida, Timothy Riley, UF PIEC , February 13, 2015.
3.Role of State and Local Regulation: Local Government/Environmental Perspective, Ralf Brooks, UF PIEC, February 13, 2015.
4.An Introduction to Unconventional Oil and Gas Technologies, Risks and Regulations, Hannah Wiseman, UF PIEC, February 13, 2015
5.Chapter 377, Part I, Florida Statutes and rule chapters 62C-25 through 62C-30, Florida Administrative Code.
6.These include Alachua County, Miami-Dade County, Hallandale Beach, Coconut Creek, and the Leon Soil and Water Conservation District.
7.Senate Bill 166 and House Bill 169.
8.Senate Bill 1468 and House Bill 1205.
9.House of Representatives Staff Analysis dated April 15, 2015.
FLORIDA EMINENT DOMAIN LAW
By Jennifer B. Springfield and Alexander Boswell-Ebersole
The government exercises its eminent domain authority by civil action, and the procedure for the exercise of this authority is generally called either a taking or a condemnation action. In addition to the substantive law of eminent domain in Florida, Chapters 73 and 74, Florida Statutes, contain several requirements concerning the procedural aspects of condemnation actions. Although the procedures governing all other civil actions still apply to condemnation actions where Chapters 73 or 74 do not prescribe a particular procedure, many of the Chapter 73 and 74 procedural requirements are significant and designed to protect property owners. Consistent with the others in this series, this article only discusses the intentional voluntary use of eminent domain, and not regulatory takings or ”inverse condemnation.”
A proceeding initiated under Chapter 73 is often called a “slow take” action and a proceeding under Chapter 74 is often called a “quick take” action. In Chapter 73 proceedings, title of the property does not pass to the condemning authority until after a final judgment assessing the compensation due. Most eminent domain actions are filed as “quick take” actions, which are supplemental to Chapter 73 and allow the condemning authority to deposit security funds into the court registry in order to take possession and title of the property prior to final judgment. However, unless specifically afforded the ability to do so in one of the several other statutes providing eminent domain authority to particular entities, only those entities listed in 74.011, Florida Statutes, may use the quick take action. A disadvantage of this quick take procedure is that once the petition is filed, the funds are deposited by the condemning authority into the court registry and are available to the landowner, the court issues an order of taking and the condemnor may not abandon the project unless the landowner/defendant agrees. On the other hand, compensation is not due until after the final judgment in a slow take proceeding, and thus the condemnor is free to abandon or change the project if it receives an unfavorable judgment.
Owners of property sought for condemnation generally hear from the condemning authority well before the actual initiation of a condemnation proceeding. In fact, before a condemning authority officially files a petition for condemnation, Chapter 73 requires that the condemning authority provide notice of a variety of statutorily required matters (e.g., that the property is necessary for a public project), and also requires the condemnor to both engage in good faith negotiations with the landowner and provide a written offer. Moreover, if the landowner requests, the condemning authority must furnish a copy of the appraisal upon which the offer is based. After receipt of the notice, the landowner has 30 days to respond before the condemning authority may initiate a condemnation proceeding. Where the landowner is a business owner, however, the condemning authority need only make a good faith effort to notify, and is not required to wait 30 days or to engage in good faith negotiations.
In filing a petition for a condemnation proceeding, the condemnor must file in the circuit court of the county where the property is located. The contents of the petition must include all the information required in 73.021, Florida Statutes, as well as a proper resolution issued by the condemning authority that authorizes the condemnation. Once the petition is filed, there are essentially two phases of a condemnation proceeding. First, the court must assess the validity of the taking (i.e. whether the condemnor has the right and whether the nature and scope of the taking is appropriate). The court makes this determination in a hearing in limine or, in the case of a quick take action, at the request of a defendant pursuant to 74.051(1), Florida Statutes. As for the second part of a condemnation proceeding, a jury determines the amount of compensation due. Thus, the court plays a rather limited role in condemnation proceedings.
THE ENVIRONMENTAL PROTECTION ACT:
“Citizen Suits” for the Environment
By Jennifer B. Springfield and Alexander Boswell-Ebersole
In 1971, the Florida Legislature passed the Florida Environmental Protection Act. This Act, codified as section 403.412, Florida Statutes, authorizes Florida citizens, subdivisions and municipalities of the state, as well as the Department of Legal Affairs, as well as private citizens who meet the standing requirements under the Act, to bring suit in the name of environmental protection. More particularly, section 403.412 allows these entities to initiate actions for injunctive relief in order to either compel enforcement by an agency charged with enforcing laws, rules, or regulations that protect the “air, water, and other natural resources of Florida,” or to prohibit any person, corporation, or government agency or authority from violating such laws, rules, or regulations.
Moreover, in addition to providing the authority to initiate judicial proceedings, the legislation enables these same entities to intervene in ongoing administrative hearings under sections 120.569 or 120.70, Florida Statutes, where the hearings are related to the protection of the “air, water, and other natural resources of the state.”
Finally, the Act also expressly gives not-for-profit corporations organized for the purpose of protecting the environment or natural resources the authority to initiate section 120.569 or 120.70 administrative hearings. The only restrictions are that: 1) the not-for-profit must consist of at least 25 current members who reside in the county where the activity is proposed, and 2) the not-for-profit must have been formed at least one year before the government agency’s initiation of the activity.
Adopted at the height of the environmental movement, the Florida Environmental Protection Act makes up part of the legislative response to Article II, Section 7 of the Florida Constitution, which was added to the state constitution in the late 1960’s. In addition to aspirational language regarding protection and conservation of the state’s natural resources and scenic beauty, Article II, Section 7 requires the Florida Legislature to make “[a]dequate provision . . . by law” to carry out these goals. As a result, the Legislature responded by adopting a variety of laws pertaining to the environment, including the Florida Environmental Protection Act.
Since the Act gives private citizens standing to bring suit to enforce the law, actions brought under it are often referred to as “citizen suits.” Some champion the benefits of the expanded role of citizens in environmental governance that citizen suit provisions can offer. Several states have statutes authorizing citizen suits and virtually all major federal environmental statutes contain citizen suit provisions.
Florida’s citizen suit provision prescribes its use for judicial proceedings in a variety of different ways. For example, it requires, as a condition precedent to instituting a suit, the petitioner to file a “verified complaint” with the agency question in order to give that agency 30 days to attempt to remedy the matter. Section 403.412 also provides for costs and attorney’s fees to be paid to the prevailing party, and restricts venue to the county or counties where the alleged transgression occurs.
Like other types of petitioners, citizens bringing suit under 403.412 must be appropriately situated so as to properly claim standing. That said, among the states with citizen suit provisions, Florida’s standing requirement is relatively lenient because Florida’s 403.412 citizen suit provision does not require a party to prove a special injury, which is typically required to show standing in other lawsuits. In other words, standing under section 403.412 does not require the party to incur an injury “different both in kind and degree” from injury suffered by the general public. This less restrictive standing requirement could be an important consideration when, for example, an activity requires both a state and federal permit, thus giving a challenger the option to challenge in either state or federal court. Yet, despite its lenient standing requirement, very few citizen suits have actually been brought under the Florida Environmental Protection Act.
FLORIDA EMINENT DOMAIN LAW
“Public Purpose” and “Just Compensation” Requirements
By Jennifer B. Springfield and Alexander Boswell-Ebersole
In Florida, governmental entities may take privately-owned real property for a “public purpose,” provided the owner receives “full compensation.” Under the Florida Constitution, the public purpose and full compensation requirements generally result in greater protection for private landowners than under federal law, and the precise meanings of these two terms have been fleshed out by the State Legislature and Florida courts. While this article’s focus is on intentional eminent domain situations, many of the same principles apply to inverse condemnation proceedings.
What is a public purpose/use? Under the U.S. Constitution and federal law, “public use” has been interpreted broadly to include projects ranging from the more traditional eminent domain purposes, such as transportation or military defense, to projects that provide a “public benefit” or fulfill an “economic development” purpose, such as clearing an area of blight or slum. Florida courts often use the two terms interchangeably and also interpreted public purpose/use rather broadly until a 2005 U.S. Supreme Court case prompted new legislation and an amendment to the Florida Constitution.
Determining whether a particular use amounts a public use or is for a public purpose is typically a legal question to be determined by the court on a case-by-case basis. Public use has been defined by the Florida Supreme Court as follows:
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 accordance with this, condemned property must be available to the public, though not all members of the public must directly enjoy the benefits of it. Moreover, property taken by eminent domain may result in private gain, so long as the taking is clearly and predominantly for a public purpose and the private gain is merely incidental. In practice, this principle has often proven difficult to apply.
Florida’s eminent domain law changed significantly in response to a 2005 U.S. Supreme Court case, Kelo v. City of New London. The Kelo Court ruled that the City of New London’s use of its eminent domain authority to take property and give it to a private developer in the name of economic redevelopment was an appropriate public use. The Florida Legislature reacted by adopting legislation in 2006 intended to protect against such a scenario. This legislation strengthened the public purpose restriction by forbidding the transfer of condemned property to a private party within 10 years of the property’s condemnation. The new legislation also specifically prohibits the use of eminent domain to either abate or eliminate a public nuisance, or to prevent or eliminate slum or blight conditions. In addition, the Legislature proposed an amendment to the state’s constitution that similarly prohibited the transfer of condemned property to private parties. The amendment, which was soundly passed by the Florida voters, only allows exceptions to be made via a three-fifths majority vote of both legislative houses.
What is full compensation? The purpose of the constitutional guarantee of full compensation is, as far as possible and practicable, to make a property owner, who is deprived of his or her property, whole. Although full compensation normally equates to the fair market value of the property at the time of the taking, this is not the exclusive standard used, and the method used to determine compensation depends on the particular circumstances of each case. When fair market value is used to determine full compensation, all factors that would reasonably be contemplated in negotiations between a willing seller and buyer should be considered. Moreover, the value of the property should be based on the highest and best use to which the property is being put or reasonably may be put. Moving costs, appraisal costs, expert witness fees, attorney’s fees, severance damages, and other reasonable costs should all be considered as part of the valuation of full compensation.Furthermore, the property owner is entitled to interest from the date of the taking until the condemning authority pays the compensation.
Eminent Domain Law in Florida: An Overview
By Jennifer B. Springfield and Alexander Boswell-Ebersole
As an “inherent attribute of sovereignty,” the government is empowered to “take” privately owned land. Such authority, known as “eminent domain” or “condemnation,” is restricted in several ways by both the United States and Florida constitutions. The government may take private property by either initiating eminent domain proceedings so as to intentionally take the property or by regulating in a way that deprives a landowner of the use of his or her property.
Takings can take the form of either a partial taking (e.g., a strip of land), a temporary taking (e.g., associated with the completion of a project on another property), an easement or right of way (e.g., for the use of part of a property for power lines), or a complete taking. Regulatory takings generally lead to “inverse condemnation” actions, in which a private landowner initiates an action based on a claim that government regulation has in effect resulted in a taking.
With a long tradition of private property rights in both Florida and the rest of the United States, the need for governments to use eminent domain power to address public needs often gives rise to impassioned disapproval from landowners and citizens. The use of this power can also result in significant financial and other personal consequences to those who are directly impacted. Nevertheless, whether representing private landowners or a condemning authority exercising the power of eminent domain, attorneys often find themselves in the midst of balancing between the public need for the use of certain property and the interests of private ownership.
The main restrictions in the U.S. Constitution on the government’s exercise of eminent domain authority are that the government may only take property for “public use” and that it must give “just compensation” for the property taken. The Florida Constitution spells-out similar requirements, except that Florida’s Constitution employs the terms “public purpose” and “full compensation.” Not surprisingly, a significant body of case law exists interpreting these terms.
The constitutional eminent domain restrictions are found in the Fifth Amendment to the U.S. Constitution, which has been interpreted to apply to state and local governments through the Fourteenth Amendment. Article X, § 6 of Florida’s Constitution contains the constitutional provisions specific to eminent domain in Florida, including the provision that “[n]o private property shall be taken except for a public purpose and with full compensation therefor . . . .” By requiring “full compensation,” the Florida Constitution gives more protection to landowners than the Federal Constitution’s “just compensation” requirement because it requires the landowner to be made whole by such compensation, including the costs incurred before a taking occurs. This requirement also gives rise to attorney’s fees and costs, which are generally not provided under federal law. The distinction between the U.S. Constitution’s “public use” and the Florida Constitution’s “public purpose” is not as clear.
A relatively recent amendment to Article X, § 6 further restricts the government’s exercise of eminent domain in Florida. Florida citizens voted to approve an amendment in 2006 in response to a 2005 U.S. Supreme Court case. Kelo v. City of New London centered on the “public purpose” requirement and involved a group of homeowners that challenged the City’s use of eminent domain in an economically depressed area. The City wanted to demolish a group of homes in order to give the land to a private developer in the name of economic development. The Court found in favor of the City, thus paving the way for local governments to use eminent domain for the fairly broad purpose of economic development. The Kelo decision triggered a public outcry among property rights’ advocates across the nation and caused many states to change their eminent domain laws. In Florida, the amendment included a provision prohibiting government from transferring property taken by eminent domain to natural persons or private entities, unless approved by a three-fifths majority of the Legislature.
Although the term “government” as used when discussing inherent eminent domain power generally refers to federal, state and local governments, such governmental entities can delegate the power to other entities such as transportation departments, public utilities and even, in limited circumstances, to private corporations. In Florida, several statutes grant eminent domain power to such entities ranging from the Department of Correction, Department of Transportation, and drainage and watershed improvement districts. Any entity exercising such delegated authority must abide by the same legal restrictions imposed upon federal, state and local governments.
Follow-up articles will provide more detailed discussions of some specific aspects of eminent domain law, including the proper purposes for which the eminent domain power can be used, the general procedures associated with eminent domain, and Florida’s rather robust provisions for attorney’s fees and costs associated with such proceedings.
Note: An inverse condemnation action originates from a “taking,” but it is a different process and will not be addressed in this series of articles.