Orlando Government Takings Lawyers | Bogin, Munns & Munns

Government-Mandated Closures of Business

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Experienced Lawyers helping Orlando’s Business Owners with Losses due to Mandatory Government shut-downs.

If the recent government-mandated shutdowns seriously impacted your business, you may be entitled to compensation from the government.

We acknowledge, honor, and respect the police powers and regulatory authority of our government when properly applied. However, the recent shelter-at-home orders issued by state and local governments decimated many of our clients’ businesses, several of which are now struggling to stay afloat. Inordinate burdens were placed on these businesses. In some instances, the government’s actions amount to what is commonly referred to as a “taking”.

We will not stand by idly and watch our business clients struggle to regain their footing. At BMM we have stood shoulder to shoulder with small businesses for 40 years. We believe they are, in many respects, the backbone of our society and great contributors to our communities. Businesses, small and large, are also the backbone of our client base, and just like we have been here for you on your real estate, corporate and tax matters in the past, we are here to help you with this illegal taking or hindrance of your business. We’re in this together, and we are here to help you. If you have suffered a material loss to your business, please contact us for a consultation.

We know times are tough and steep attorney fees just might not be in your budget at the moment. To show our dedication to our clients and their cause, we are committed to representing your interests in the most practical manner, including representation on a contingency/success fee basis, or other creative billing arrangements that suit your particular needs.

What is Inverse Condemnation?

Inverse condemnation is a type of government taking of property that occurs without using the power of eminent domain. In your typical government taking legal action, the government files a lawsuit against you, the property owner. The lawsuits we are pursuing are described as “inverse condemnation” because the lawsuit is initiated by you against the government, not vice versa. We stand with you in these efforts and are taking this proactive approach in order to help you obtain compensation for your damages.

Florida Department of Agriculture v. Mendez

You might ask, “Isn’t the government authorized to issue shelter-at-home orders without liability under the theory of sovereign immunity?” Consider the case of Florida Dep’t of Agriculture and Consumer Services v. Mendez, 126 So. 3d 357 (Fla. 4^th Dist. App. 2013)(“Mendez”). In Mendez, homeowners whose healthy citrus trees had been destroyed by the Department of Agriculture in an effort to contain a citrus-killing virus called “canker” filed an inverse condemnation suit against the Department of Agriculture. The Mendez Court explained: “Only where the property is imminently dangerous may the state take the property without compensation.” The Court in Mendez added: “Only in the narrowest of circumstances is compensation not required when the state destroys private property….Thus, the presumption of mere ‘harm,’ as opposed to imminent dangerousness, does not render the taking non-compensable.”

The Mendez Court clearly explained that the government’s taking of uninfected trees, even as a precautionary action to control the spread of the canker virus, was a compensable taking. Relying on previously established precedent, the Court provided this insight: “The burrowing nematode, which causes spreading decline, offers ‘no immediate menace to the trees in a neighboring grove’ and the healthy citrus trees were not ‘imminently dangerous’….” In application to your business:

When the shelter-at-home order was issued, did the government in any way take away your ability to access and run your business?
Was your business “uninfected” like the uninfected citrus trees in Mendez?
Was your business “healthy” like the healthy citrus trees in Mendez, and could you have kept it that way by applying appropriate safety measures?
Was your healthy business an imminent danger to the public or did the government act on a “mere presumption of harm”?

Closures May Have Been Premature or Overly Burdensome

The shelter-at-home orders were issued at a time when, in some counties in Florida, very few COVID-19 cases had been reported, if any at all. We ask, did all businesses present an imminent danger?

What’s more, generally speaking, many cases indicate a government should deploy the least restrictive means when impairing fundamental rights. Could you have continued to operate your business in a manner consistent with the safety precautions and guidelines of health authorities? Could you have implemented social distancing, the use of facemasks, hand sanitation stations, etc.? If you were allowed to continue operating your business while applying these safety procedures, might that have been a less restrictive way for the government to regulate your fundamental rights? Would your business be better off today?

Many of our business clients complied with the broad sweeping shelter-at-home orders in an effort to again contribute to the overall safety and welfare of their communities. They did so when their businesses were not an imminent danger. Therefore, they are entitled to compensation for the government’s taking of their ability to run their business. We are eager to help you recover what you are entitled to through an inverse condemnation action.

What is the Bert J. Harris Act?

The Bert J. Harris, Jr., Private Property Rights Protection Act (F.S. 70.001; the “Act”) is a statute that focuses on protecting property owners’ rights to existing uses of their property. Under the Act a property owner may seek compensation when a new government regulation creates an “inordinate burden” on the property owner’s existing use. Read the full text of the statute.

As you can see, the statute is quite nuanced. If you don’t fully understand all of the details, don’t worry, we’re here to explain its application to your specific situation

What can you do now?

Contact us. We’re rolling up our sleeves and getting to work. We will take you through your options, whether it be inverse condemnation, a Harris Act claim, or some other strategy to help your business get back on its feet. To paraphrase Vince Lombardi: “It’s not how many times you get knocked down, it’s how many times you get back up.” We’re here to stand up with you and fight for the compensation you deserve.

Frequently Asked Questions

What is Inverse Condemnation and How is it Different From Eminent Domain?

Generally speaking, the government may take private property in one of two ways.

Eminent domain, otherwise known as condemnation, involves the government taking private property for a public purpose such as land that is taken to widen a road.

When the government takes private property in this manner, the owner is entitled to just compensation for the taking and there are often involved legal proceedings initiated by the government related to the taking itself and the compensation to be provided to the owner.

Inverse condemnation, on the other hand, refers to property being taken by the government for a public purpose without following eminent domain procedures and without paying full compensation to the property owner.

While inverse condemnation also involves legal proceedings, they are initiated by the property owner as opposed to the government to address the compensation to be paid to the property owner for the government taking.

What Types of Takings may be Addressed by Inverse Condemnation Proceedings?

Generally speaking, inverse condemnation takings can take several different forms.

A taking may involve a physical encroachment or invasion of the property.

When the government makes an unpermitted physical encroachment onto private property (no matter how slight the invasion) as long as the encroachment has a degree of permanence, then a taking may have occurred.

The taking may also occur through government regulation.

Regulatory takings may authorize physical invasions of property or they may result in total deprivation of all or substantially all beneficial use and value of the affected property.

Additionally, other government actions may result in a “de facto” taking.

Of course, the various ways that government action may impact property rights are nearly endless.

These actions usually are related to some manner of public project without some sort of physical taking.

As an example, the building of a new road by the government may alter or limit previously used methods of accessing property and affect property rights even without a physical taking.

Ultimately, the question of what actually constitutes a taking is left for a judge to decide based upon the specific facts and circumstances of each case.

The Government Did Not Take Ownership of my Land, but I Still Suffered Damages Due to Their Regulation(s). Can I Recover for That?

The Honest Answer is Maybe.

An inverse condemnation taking may occur even though the property owner still maintains ownership of their property.

If the government limits a property owner’s rights to such a degree that the owner loses an essential part of those rights, then a taking may have occurred and proper compensation for this taking may be required from the government.

What Does Just Compensation Mean?

When a government taking occurs, the affected owner may be entitled to just compensation.

In Florida, our Supreme Court’s test of full compensation is the value of the property measured by considering all of the facts and circumstances bearing a reasonable relationship to the owner’s loss as a result of the taking.

When performing this analysis, fair market value is not an exclusive standard in determining full and proper compensation to be paid to the affected owner.

There are often various facts for the Court to consider in determining just or full compensation in each case.

Based upon these facts, just compensation could mean fair market value, value in use, special purpose value or any of a range of severance and special damages.

Full compensation may also include reimbursement for attorneys’ fees and costs in pursuing the remedy.

In some cases, if the government action is deemed to be a due process violation, then the owner may only be entitled to injunctive or declaratory relief rather than monetary damages.

Obviously, these matters can involve many complicated issues and are often quite fact dependent.

Am I Entitled to a Jury Trial for Inverse Condemnation?

In Florida, the process may involve both a judge and a jury.

The judge makes the initial determination as to whether a taking has occurred.

Thereafter, if there is a taking, then a jury may determine the appropriate damages related to the taking.

How Long do I Have to Bring an Inverse Condemnation Claim?

Very few cases get better with age and most attorneys will advise clients to move forward sooner rather than later with any legal matter to avoid statutes of limitation and other issues.

Generally speaking, a property owner has four (4) years to bring an inverse condemnation claim, but specifically when the four year period begins to run may be an involved question.

The affected landowner’s knowledge that government action is causing damages is usually enough to start the accrual of a claim for statute of limitations purposes.

With that said, if the government conduct is continuing, then some courts have applied the “Dickinson Stabilization Doctrine” which provides that the statute of limitations period begins to run from the time the situation becomes stabilized.

Additionally, as a general matter, with most regulatory takings, the statute begins running once the government agency has made a final decision about the permissible uses of the property.

Florida Department of Agriculture v. Mendez