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The Florida Senate

2018 Florida Statutes

Title XIX PUBLIC BUSINESS
Chapter 288 COMMERCIAL DEVELOPMENT AND CAPITAL IMPROVEMENTS Entire Chapter
SECTION 1226
Florida Tourism Industry Marketing Corporation; use of property; board of directors; duties; audit.
F.S. 288.1226
288.1226 Florida Tourism Industry Marketing Corporation; use of property; board of directors; duties; audit.—
(1) DEFINITIONS.—For the purposes of this section, the term “corporation” means the Florida Tourism Industry Marketing Corporation.
(2) ESTABLISHMENT.—The Florida Tourism Industry Marketing Corporation is a direct-support organization of Enterprise Florida, Inc.
(a) The Florida Tourism Industry Marketing Corporation is a corporation not for profit, as defined in s. 501(c)(6) of the Internal Revenue Code of 1986, as amended, that is incorporated under the provisions of chapter 617 and approved by the Department of State.
(b) The corporation is organized and operated exclusively to request, receive, hold, invest, and administer property and to manage and make expenditures for the operation of the activities, services, functions, and programs of this state which relate to the statewide, national, and international promotion and marketing of tourism.
(c)1. The corporation is not an agency for the purposes of chapters 120, 216, and 287; ss. 255.21, 255.25, and 255.254, relating to leasing of buildings; ss. 283.33 and 283.35, relating to bids for printing; s. 215.31; and parts I, II, and IV-VIII of chapter 112. However, the corporation shall comply with the per diem and travel expense provisions of s. 112.061.
2. It is not a violation of s. 112.3143(2) or (4) for the officers or members of the board of directors of the corporation to:
a. Vote on the 4-year marketing plan required under s. 288.923 or vote on any individual component of or amendment to the plan.
b. Participate in the establishment or calculation of payments related to the private match requirements of subsection (6). The officer or member must file an annual disclosure describing the nature of his or her interests or the interests of his or her principals, including corporate parents and subsidiaries of his or her principal, in the private match requirements. This annual disclosure requirement satisfies the disclosure requirement of s. 112.3143(4). This disclosure must be placed on the corporation’s website or included in the minutes of each meeting of the corporation’s board of directors at which the private match requirements are discussed or voted upon.
(d) The corporation is subject to the provisions of chapter 119, relating to public meetings, and those provisions of chapter 286 relating to public meetings and records.
(3) USE OF PROPERTY.—Enterprise Florida, Inc.:
(a) Is authorized to permit the use of property and facilities of Enterprise Florida, Inc., by the corporation, subject to the provisions of this section.
(b) Shall prescribe conditions with which the corporation must comply in order to use property and facilities of Enterprise Florida, Inc. Such conditions shall provide for budget and audit review and for oversight by Enterprise Florida, Inc.
(c) May not permit the use of property and facilities of Enterprise Florida, Inc., if the corporation does not provide equal employment opportunities to all persons, regardless of race, color, national origin, sex, age, or religion.
(4) BOARD OF DIRECTORS.—The board of directors of the corporation shall be composed of 31 tourism-industry-related members, appointed by Enterprise Florida, Inc., in conjunction with the department. Board members shall serve without compensation, but are entitled to receive reimbursement for per diem and travel expenses pursuant to s. 112.061. Such expenses must be paid out of funds of the corporation.
(a) The board shall consist of 16 members, appointed in such a manner as to equitably represent all geographic areas of the state, with no fewer than two members from any of the following regions:
1. Region 1, composed of Bay, Calhoun, Escambia, Franklin, Gadsden, Gulf, Holmes, Jackson, Jefferson, Leon, Liberty, Okaloosa, Santa Rosa, Wakulla, Walton, and Washington Counties.
2. Region 2, composed of Alachua, Baker, Bradford, Clay, Columbia, Dixie, Duval, Flagler, Gilchrist, Hamilton, Lafayette, Levy, Madison, Marion, Nassau, Putnam, St. Johns, Suwannee, Taylor, and Union Counties.
3. Region 3, composed of Brevard, Indian River, Lake, Okeechobee, Orange, Osceola, St. Lucie, Seminole, Sumter, and Volusia Counties.
4. Region 4, composed of Citrus, Hernando, Hillsborough, Manatee, Pasco, Pinellas, Polk, and Sarasota Counties.
5. Region 5, composed of Charlotte, Collier, DeSoto, Glades, Hardee, Hendry, Highlands, and Lee Counties.
6. Region 6, composed of Broward, Martin, Miami-Dade, Monroe, and Palm Beach Counties.
(b) The 15 additional tourism-industry-related members shall include 1 representative from the statewide rental car industry; 7 representatives from tourist-related statewide associations, including those that represent hotels, campgrounds, county destination marketing organizations, museums, restaurants, retail, and attractions; 3 representatives from county destination marketing organizations; 1 representative from the cruise industry; 1 representative from an automobile and travel services membership organization that has at least 2.8 million members in Florida; 1 representative from the airline industry; and 1 representative from the space tourism industry, who will each serve for a term of 2 years.
(5) POWERS AND DUTIES.—The corporation, in the performance of its duties:
(a) May make and enter into contracts and assume such other functions as are necessary to carry out the provisions of the 4-year marketing plan required by s. 288.923, and the corporation’s contract with Enterprise Florida, Inc., which are not inconsistent with this or any other provision of law. A proposed contract with a total cost of $750,000 or more is subject to the notice and review procedures of s. 216.177. If the chair and vice chair of the Legislative Budget Commission, or the President of the Senate and the Speaker of the House of Representatives, timely advise the corporation in writing that such proposed contract is contrary to legislative policy and intent, the corporation may not execute such proposed contract. The corporation may not enter into multiple related contracts to avoid the requirements of this paragraph.
(b) May develop a program to provide incentives and to attract and recognize those entities which make significant financial and promotional contributions towards the expanded tourism promotion activities of the corporation.
(c) May establish a cooperative marketing program with other public and private entities which allows the use of the VISIT Florida logo in tourism promotion campaigns which meet the standards of Enterprise Florida, Inc., for which the corporation may charge a reasonable fee.
(d) May sue and be sued and appear and defend in all actions and proceedings in its corporate name to the same extent as a natural person.
(e) May adopt, use, and alter a common corporate seal. However, such seal must always contain the words “corporation not for profit.”
(f) Shall elect or appoint such officers and agents as its affairs shall require and allow them reasonable compensation. However, each officer or agent, including the president and chief executive officer of the corporation, may not receive public compensation for employment that exceeds the salary and benefits authorized to be paid to the Governor. Any public payments of performance bonuses or severance pay to an officer or agent of the corporation are prohibited unless specifically authorized by law.
(g) Shall hire and establish salaries and personnel and employee benefit programs for such permanent and temporary employees as are necessary to carry out the provisions of the 4-year marketing plan and the corporation’s contract with Enterprise Florida, Inc., which are not inconsistent with this or any other provision of law. However, an employee may not receive public compensation for employment that exceeds the salary and benefits authorized to be paid to the Governor. Any public payments of performance bonuses or severance pay to employees of the corporation are prohibited unless specifically authorized by law.
(h) May adopt, change, amend, and repeal bylaws, not inconsistent with law or its articles of incorporation, for the administration of the provisions of the 4-year marketing plan and the corporation’s contract with Enterprise Florida, Inc.
(i) May conduct its affairs, carry on its operations, and have offices and exercise the powers granted by this act in any state, territory, district, or possession of the United States or any foreign country. Where feasible, appropriate, and recommended by the 4-year marketing plan developed by the Division of Tourism Promotion of Enterprise Florida, Inc., the corporation may collocate the programs of foreign tourism offices in cooperation with any foreign office operated by any agency of this state.
(j) May appear on its own behalf before boards, commissions, departments, or other agencies of municipal, county, state, or federal government.
(k) May request or accept any grant, payment, or gift, of funds or property made by this state or by the United States or any department or agency thereof or by any individual, firm, corporation, municipality, county, or organization for any or all of the purposes of the 4-year marketing plan and the corporation’s contract with Enterprise Florida, Inc., that are not inconsistent with this or any other provision of law. Such funds shall be deposited in a bank account established by the corporation’s board of directors. The corporation may expend such funds in accordance with the terms and conditions of any such grant, payment, or gift, in the pursuit of its administration or in support of the programs it administers. The corporation shall separately account for the public funds and the private funds deposited into the corporation’s bank account.
(l) Shall establish a plan for participation in the corporation which will provide additional funding for the administration and duties of the corporation.
(m) In the performance of its duties, may undertake, or contract for, marketing projects and advertising research projects.
(n) In addition to any indemnification available under chapter 617, the corporation may indemnify, and purchase and maintain insurance on behalf of, directors, officers, and employees of the corporation against any personal liability or accountability by reason of actions taken while acting within the scope of their authority.
(o) Shall not create or establish any other entity, corporation, or direct-support organization.
(p) Shall not expend funds, public or private, that directly benefit only one company, corporation, or business entity.
(6) MATCHING REQUIREMENTS.—
(a) A one-to-one match is required of private to public contributions to the corporation. Public contributions include all state appropriations to the corporation and exclude taxes derived pursuant to s. 125.0104.
(b) For purposes of calculating the required one-to-one match, the corporation shall receive matching private contributions in one of four private match categories. The corporation shall maintain documentation of such categorized contributions on file and make such documentation available for inspection upon reasonable notice during its regular business hours. Contribution details shall be included in the quarterly reports required under subsection (8). The private match categories are:
1. Direct cash contributions from private sources, which include, but are not limited to, cash derived from strategic alliances, contributions of stocks and bonds, and partnership contributions.
2. Fees for services, which include, but are not limited to, event participation, research, and brochure placement and transparencies.
3. Cooperative advertising, which is limited to partner expenditures for paid media placement, partner expenditures for collateral material distribution, and the actual market value of contributed productions, air time, and print space.
4. In-kind contributions, which is limited to the actual market value of promotional contributions of partner-supplied benefits to target audiences and the actual market value of nonpartner-supplied air time or print space contributed for the broadcasting or printing of such promotions, which would otherwise require tourist promotion expenditures by the corporation for advertising, air travel, rental car fees, hotel rooms, RV or campsite space rental, onsite guest services, and admission tickets. The net value of air time or print space, if any, shall be deemed to be the actual market value of the air time or print space, based on an average of actual unit prices paid contemporaneously for comparable times or spaces, less the value of increased ratings or other benefits realized by the media outlet as a result of the promotion.

Contributions from a government entity or from an entity that received more than 50 percent of its revenue in the previous fiscal year from public sources, including revenue derived from taxes, other than taxes collected pursuant to s. 125.0104, from fees, or from other government revenues, are not considered private contributions for purposes of calculating the required one-to-one match.

(c) If the corporation fails to meet the one-to-one match requirements of this subsection, the corporation shall revert all unmatched public contributions to the state treasury by June 30 of each fiscal year.
(7) ANNUAL AUDIT.—The corporation shall provide for an annual financial audit in accordance with s. 215.981. The annual audit report shall be submitted to the Auditor General; the Office of Program Policy Analysis and Government Accountability; Enterprise Florida, Inc.; and the department for review. The Office of Program Policy Analysis and Government Accountability; Enterprise Florida, Inc.; the department; and the Auditor General have the authority to require and receive from the corporation or from its independent auditor any detail or supplemental data relative to the operation of the corporation. The department shall annually certify whether the corporation is operating in a manner and achieving the objectives that are consistent with the policies and goals of Enterprise Florida, Inc., and its long-range marketing plan. The identity of a donor or prospective donor to the corporation who desires to remain anonymous and all information identifying such donor or prospective donor are confidential and exempt from the provisions of s. 119.07(1) and s. 24(a), Art. I of the State Constitution. Such anonymity shall be maintained in the auditor’s report.
(8) REPORT.—The corporation shall provide a quarterly report to Enterprise Florida, Inc., which shall:
(a) Measure the current vitality of the visitor industry of this state as compared to the vitality of such industry for the year to date and for comparable quarters of past years. Indicators of vitality shall be determined by Enterprise Florida, Inc., and shall include, but not be limited to, estimated visitor count and party size, length of stay, average expenditure per party, and visitor origin and destination.
(b) Provide detailed, unaudited financial statements of sources and uses of public and private funds.
(c) Measure progress towards annual goals and objectives set forth in the 4-year marketing plan.
(d) Review all pertinent research findings.
(e) Provide other measures of accountability as requested by Enterprise Florida, Inc.

The corporation must take all steps necessary to provide all data that is used to develop the report, including source data, to the Office of Economic and Demographic Research.

(9) PUBLIC RECORDS EXEMPTION.—The identity of any person who responds to a marketing project or advertising research project conducted by the corporation in the performance of its duties on behalf of Enterprise Florida, Inc., or trade secrets as defined by s. 812.081 obtained pursuant to such activities, are exempt from s. 119.07(1) and s. 24(a), Art. I of the State Constitution. This subsection is subject to the Open Government Sunset Review Act in accordance with s. 119.15 and shall stand repealed on October 2, 2021, unless reviewed and saved from repeal through reenactment by the Legislature.
(10) PROHIBITIONS; CORPORATE FUNDS; GIFTS.—Funds of the corporation may not be expended for food, beverages, lodging, entertainment, or gifts for employees of the corporation, board members of the corporation, or employees of a tourist or economic development entity that receives revenue from a tax imposed pursuant to s. 125.0104, s. 125.0108, or s. 212.0305, unless authorized pursuant to s. 112.061 or this section. An employee or board member of the corporation may not accept or receive food, beverages, lodging, entertainment, or gifts from a tourist or economic development entity that receives revenue from a tax imposed pursuant to s. 125.0104, s. 125.0108, or s. 212.0305, or from any person, vendor, or other entity, doing business with the corporation unless such food, beverage, lodging, entertainment, or gift is available to similarly situated members of the general public.
(11) LODGING EXPENSES.—Lodging expenses for an employee of the corporation may not exceed $150 per day, excluding taxes, unless the corporation is participating in a negotiated group rate discount or the corporation provides documentation of at least three comparable alternatives demonstrating that such lodging at the required rate is not available. However, an employee of the corporation may expend his or her own funds for any lodging expenses in excess of $150 per day.
(12) PROPOSED OPERATING BUDGET SUBMISSION.—By August 15 of each fiscal year, the Department of Economic Opportunity shall submit a proposed operating budget for the corporation including amounts to be expended on advertising, marketing, promotions, events, other operating capital outlay, and salaries and benefits for each employee to the Governor, the President of the Senate, and the Speaker of the House of Representatives.
(13) TRANSPARENCY.—
(a) All executed corporation contracts are to be placed for viewing on the corporation’s website. All contracts with the corporation valued at $500,000 or more shall be placed on the corporation’s website for review 14 days prior to execution.
(b) A contract entered into between the corporation and any other public or private entity shall include:
1. The purpose of the contract.
2. Specific performance standards and responsibilities for each entity.
3. A detailed project or contract budget, if applicable.
4. The value of any services provided.
5. The projected travel and entertainment expenses for employees and board members, if applicable.
(c)1. Any entity that in the previous fiscal year received more than 50 percent of its revenue from the corporation or taxes imposed pursuant to s. 125.0104, s. 125.0108, or s. 212.0305, and that partners with the corporation or participates in a program, cooperative advertisement, promotional opportunity, or other activity offered by or in conjunction with the corporation, shall annually on July 1 report all public and private financial data to the Governor, the President of the Senate, and the Speaker of the House of Representatives, and include such report on its website.
2. The financial data shall include:
a. The total amount of revenue received from public and private sources.
b. The operating budget of the partner entity.
c. Employee and board member salary and benefit details from public and private funds.
d. An itemized account of all expenditures by the partner entity on the behalf of, or coordinated for the benefit of the corporation, its board members, or employees.
e. Itemized travel and entertainment expenditures of the partner entity.
(d) The following information must be posted on the corporation’s website:
1. A plain language version of any contract that is estimated to exceed $35,000 with a private entity, municipality, city, town, or vendor of services, supplies, or programs, including marketing, or for the purchase or lease or use of lands, facilities, or properties.
2. Any agreement entered into between the corporation and any other entity, including a local government, private entity, or nonprofit entity, that receives public funds or funds from a tax imposed pursuant to s. 125.0104, s. 125.0108, or s. 212.0305.
3. The contracts and the required information pursuant to paragraph (b) and the financial data submitted to the corporation pursuant to paragraph (c).
4. Video recordings of each board meeting.
5. A detailed report of expenditures following each marketing event paid for with the corporation’s funds. Such report must be posted within 10 business days after the event.
6. An annual itemized accounting of the total amount of funds spent by any third party on behalf of the corporation or any board member or employee of the corporation.
7. An annual itemized accounting of the total amount of travel and entertainment expenditures by the corporation.
(e) The corporation’s website must:
1. Allow users to navigate to related sites to view supporting details.
2. Enable a taxpayer to email questions to the corporation and make such questions and the corporation’s responses publicly viewable.
(14) REPEAL.—This section is repealed October 1, 2019, unless reviewed and saved from repeal by the Legislature.
History.—s. 7, ch. 92-299; s. 6, ch. 94-136; s. 877, ch. 95-148; s. 1, ch. 95-369; s. 1, ch. 96-297; s. 53, ch. 96-320; s. 140, ch. 96-406; s. 41, ch. 97-100; s. 18, ch. 99-251; s. 1, ch. 2001-69; s. 91, ch. 2001-266; s. 2, ch. 2004-274; s. 32, ch. 2011-142; s. 32, ch. 2012-5; s. 13, ch. 2014-96; s. 3, ch. 2016-6; s. 17, ch. 2017-233.