When businesses open in a new area, they frequently try to get as many incentives as possible from the local government. Conversely, many local governments try to offer as many incentives as possible in order to attract or retain new businesses. Florida’s Third District Court of Appeals recently opened up whole new possibilities for Florida-county-level business incentives in Matheson v. Miami-Dade Cnty., No. 3D17-2649, -- So. 3d -- (Fla. 3d DCA Oct. 10, 2018).
Under section 125.35, Fla. Stat., Florida counties are generally required to use competitive bidding for all sales of county-owned land to private parties. However, another statute section 125.045, Fla. Stat., authorizes counties to convey real property to private businesses in order to attract new businesses or retain existing businesses. Until Matheson, it was not clear whether or not conveyances made under section 125.045 are exempt from the requirements of section 125.35. However, in Matheson the Third District ruled that they are, emphasizing language in section 125.045(5)(a) which requires counties to report any “below-market rate leases or deeds for real property” that are part of an economic incentive package to the State’s Office of Economic and Demographic Research so that they can be included in an annual report to the Legislature.
It would be a best practice for the County to justify the application of the exemption from conducting a competitive procurement by including a statement in the record explaining why conveying real property to a private business will help attract or retain that business.
Joseph M. Goldstein is the Managing Partner of the Fort Lauderdale office of Shutts & Bowen LLP, where he is a member of the Business Litigation Practice Group. Joseph also practices out of the Tallahassee office.
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