Today, a CVS Pharmacy located in Naples, Florida on the way to Marco Island, Florida is open for business. While this may spell good news for tourists in need of sunscreen and the seasonal “snow birds” picking up their toiletries, the Board of County Commissioners is not so thrilled. Recently, the Board gave County Attorney, Jeff Klatzkow, the green light to take legal action against CVS’s subsidiary, Holiday CVS, LLC (CVS), and property owner, Realty Trust Group, LLC (RTG).
The CVS saga started over four (4) years ago when the Board of County Commissioners passed a Resolution to expand the right-of-way for U.S. 41/Tamiami Trail, a heavily-travelled road that cuts through the heart of Naples while connecting Tampa and Miami. The County initiated eminent domain proceedings to condemn a portion of RTG’s property on the corner of Tamiami Trail and Collier Boulevard. In response, CVS claimed they terminated their lease with RTG as a result of reduced parking space and interference caused by the County’s construction to the flow of traffic into the Store.
During the 2014 eminent domain trial, a CVS representative contended that the Store’s location was set to close in January 2015. This testimony as to the negative business impact caused by the taking and construction was not lost on the twelve person jury, which returned verdicts in favor of CVS and RTG for over $5 million, of which $1.9 million was awarded to CVS for business damages. However, for almost three years now CVS continues to operate and pay rent to RTG as a month-to-month tenant. During this time, County Officials have become increasingly incensed at CVS’s failure to close the Store pursuant to their representative’s testimony during the trial.
The question now is: did CVS and RTG receive a windfall based on a misrepresentation of the intention to close the Store? It will be interesting to see if Collier County has the right “prescription” to remedy the perceived overreaching by the retail pharmacy giant, whose cash register is still ringing at the bustling corner of Tamiami Trail and Collier Boulevard. This “clawback” case will likely be closely watched by eminent domain practitioners across the country, and we’ll post the updates if it progresses.
