PRINTER'S NO. 598
No. 550 Session of 2005
INTRODUCED BY BUTKOVITZ, BLACKWELL, WATERS, OLIVER, McGEEHAN,
MAHER, W. KELLER, CALTAGIRONE, WASHINGTON, JAMES, MYERS,
ROEBUCK, BISHOP AND YOUNGBLOOD, FEBRUARY 15, 2005
REFERRED TO COMMITTEE ON FINANCE, FEBRUARY 15, 2005
AN ACT
1 Providing grants for certain business establishments that
2 experience loss of business income as a result of certain
3 activity by Commonwealth agencies and Commonwealth
4 instrumentalities; providing for the powers and duties of the
5 Department of General Services; imposing penalties; and
6 making an appropriation.
7 The General Assembly of the Commonwealth of Pennsylvania
8 hereby enacts as follows:
9 Section 1. Short title.
10 This act shall be known and may be cited as the First Class
11 City Business Preservation and Just Compensation Act.
12 Section 2. Legislative findings.
13 The General Assembly finds and declares as follows:
14 (1) The municipal classification law defines cities of
15 the first class as those cities containing a population of
16 more than 1,000,000.
17 (2) Given the fact that cities of the first class
18 contain a substantially disproportionate share of the
19 Commonwealth's population and given the major impact of
1 economic and social problems in such cities on the rest of
2 this Commonwealth, the business climate in cities of the
3 first class is of vital importance to this Commonwealth.
4 (3) The growth and preservation of private business
5 establishments are critical to the economic and social health
6 of cities of the first class with their disproportionate
7 number of unemployed individuals and low-income residents who
8 are in dire need of economic opportunities.
9 (4) The revenues derived from a healthy and thriving
10 business community are an important funding source for city
11 programs that are necessary to support public schools and to
12 finance antipoverty, employment opportunity and other social
13 safety net programs that benefit many residents in cities of
14 the first class.
15 (5) It is just and appropriate for the Commonwealth to
16 compensate business establishments for losses in business
17 income caused by the activities of Commonwealth agencies and
18 Commonwealth instrumentalities.
19 Section 3. Definitions.
20 The following words and phrases when used in this act shall
21 have the meanings given to them in this section unless the
22 context clearly indicates otherwise:
23 "Activity by a Commonwealth agency or Commonwealth
24 instrumentality." Any construction activity or any other
25 project conducted by a Commonwealth agency or Commonwealth
26 instrumentality that requires the closure of any portion of a
27 road, street or highway if that activity causes the loss or
28 substantial impairment of customer, supplier or employee access
29 to or from a store, plant, office or other facility owned or
30 leased by a business establishment within a city of the first
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1 class.
2 "Applicant." The owner or chief executive officer of a
3 business establishment that has incurred a loss of business
4 income that qualifies for compensation under this act.
5 "Business establishment." An association, partnership,
6 corporation, sole proprietorship, limited liability company or
7 employer.
8 "Commonwealth agency." An agency of the government of the
9 Commonwealth, including a court and other officer or agency of
10 the unified judicial system, the General Assembly and any of its
11 officers and agencies, the Governor, and any department, board,
12 commission, authority, officer or agency of the Commonwealth.
13 The term does not include a political subdivision, municipal or
14 other local authority or any officer or agency of any such
15 political subdivision or local authority.
16 "Commonwealth instrumentality." This term includes, but is
17 not limited to, a public transportation authority that operates
18 a mass transportation system within a city of the first class,
19 including the Southeastern Pennsylvania Transportation
20 Authority.
21 "Department." The Department of General Services of the
22 Commonwealth.
23 "Loss of business income." The difference between a business
24 establishment's actual loss experience during the period of loss
25 or substantial impairment of customer, supplier or employee
26 access to or from a facility specified in section 4 (relating to
27 compensation for loss of business income), as a result of such
28 substantial impairment, loss of access and the income of the
29 business establishment that would have been earned during such
30 period if access to such facility had not been lost or
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1 substantially impaired.
2 Section 4. Compensation for loss of business income.
3 (a) Compensation standard.--A business establishment shall
4 be entitled to just compensation, out of funds appropriated to
5 the department, for loss of business income resulting from the
6 loss or substantial impairment of customer, supplier or employee
7 access to or from a store, plant, office or other facility owned
8 or leased by that business establishment, located in a city of
9 the first class, as a result of any activity by a Commonwealth
10 agency or Commonwealth instrumentality, if such activity causes
11 a loss or substantial impairment of access for more than 30 days
12 during any consecutive 12-month period.
13 (b) Burden of proof.--A business establishment shall have
14 the burden of proving the amount of its loss of business income,
15 the loss of substantial impairment of access to its facility and
16 any other fact relating to its eligibility for compensation
17 under this act.
18 (c) Duty to mitigate damages.--As a condition for receiving
19 compensation under this act, a business establishment shall take
20 reasonable measures to mitigate damages in order to reduce its
21 loss of business income. The department shall factor the failure
22 of a business establishment to take reasonable measures to
23 reduce the loss of business income into the amount of any
24 compensation paid to that business establishment pursuant to
25 this act.
26 (d) Restrictions on double recovery.--No business
27 establishment shall be eligible for compensation under this act
28 unless it shall assign over to the Commonwealth all rights to or
29 eligibility for compensation, claims, insurance, causes of
30 action and grants or assistance from any Federal, State or local
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1 government entity or private entity that becomes available to
2 the business establishment as a result of its loss of business
3 income or transmit any proceeds derived from any such entity to
4 the department. The department shall return any moneys received
5 pursuant to this section to the business establishment that
6 exceed the amount of compensation paid by the department to the
7 business establishment pursuant to this act and shall release
8 the business establishment from any assignment that is no longer
9 necessary to carry out the purposes of this section.
10 Section 5. Administration of program.
11 (a) Administration by department.--The department shall
12 administer the compensation program prescribed by this act.
13 (b) Application for compensation.--Upon receipt and approval
14 of a sworn application by any eligible business establishment
15 for compensation for loss of business income, the department
16 shall examine the claim and pay just compensation for any loss
17 of business income that is compensable under this act. The
18 department shall make applications for compensation available
19 for use by business establishments within 60 days after the
20 effective date of this section.
21 Section 6. Application to certain losses of business income
22 occurring before effective date.
23 A business establishment shall be entitled to compensation
24 for loss of business income which occurred before the effective
25 date of this section if the activity by a Commonwealth agency or
26 Commonwealth instrumentality that caused such loss of business
27 income continues to cause a loss or substantial impairment of
28 customer, supplier or employee access to or from a facility
29 specified in section 4 (relating to compensation for loss of
30 business income) on or after the effective date of this section.
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1 Section 7. Regulations.
2 (a) General rule.--The department shall promulgate any rules
3 and regulations that are necessary and proper for the
4 administration of this act.
5 (b) Temporary regulations.--
6 (1) Notwithstanding any other provision of law to the
7 contrary, and in order to facilitate the prompt
8 implementation of this act, regulations promulgated by the
9 department during the two years following the effective date
10 of this section shall be deemed temporary regulations which
11 shall expire no later than three years following the
12 effective date of this section or upon the promulgation of
13 regulations as generally provided by law.
14 (2) The temporary regulations shall not be subject to:
15 (i) Sections 201 through 205 of the act of July 31,
16 1968 (P.L.769, No.240), referred to as the Commonwealth
17 Documents Law.
18 (ii) The act of June 25, 1982 (P.L.633, No.181),
19 known as the Regulatory Review Act.
20 (c) Limitation on temporary regulations.--The authority
21 provided to the department to adopt temporary regulations in
22 subsection (a) shall expire in two years from the effective date
23 of this section. Regulations adopted after the two-year period
24 shall be promulgated as provided by law.
25 Section 8. Penalties.
26 In addition to any applicable criminal penalties, any person
27 making a false claim under the provisions of this act shall be
28 subject to a penalty in the amount of three times the amount of
29 the award with interest. Interest shall be computed at the rate
30 determined by the Secretary of Revenue for interest payments on
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1 overdue taxes or the refund of taxes as provided in sections 806
2 and 806.1 of the act of April 9, 1929 (P.L.343, No.176), known
3 as The Fiscal Code. This penalty may be enforced by the
4 Commonwealth in the manner that other debts due and owing the
5 Commonwealth are collected.
6 Section 9. Appropriations.
7 (a) Specific appropriation.--The sum of $5,000,000, or as
8 much thereof as may be necessary, is hereby appropriated to the
9 Department of General Services for the purposes of this act.
10 (b) Additional appropriations.--Compensation payments shall
11 be paid out of the annual general appropriation for the general
12 government operations of the department if the funds
13 appropriated pursuant to subsection (a) are insufficient to pay
14 the compensation required by this act.
15 Section 10. Effective date.
16 This act shall take effect immediately.
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