Senate Bill 1504

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    Florida Senate - 1998                                  SB 1504

    By Senator Ostalkiewicz





    12-742-98

  1                      A bill to be entitled

  2         An act relating to tax on sales, use, and other

  3         transactions; amending s. 212.08, F.S.;

  4         revising the exemption for food and drinks;

  5         providing definitions; providing an exemption

  6         for certain foods, drinks, and other items

  7         provided to customers on a complimentary basis

  8         by a dealer who sells food products at retail;

  9         providing an exemption for foods and beverages

10         donated by such dealers to certain

11         organizations; revising provisions relating to

12         the technical assistance advisory committee

13         established to provide advice in determining

14         taxability of foods and medicines; providing

15         membership requirements; directing the

16         Department of Revenue to develop guidelines for

17         such determination and providing requirements

18         with respect thereto; providing for use of the

19         guidelines by the committee; providing for

20         determination of the taxability of specific

21         products by the department; authorizing the

22         department to develop a central database with

23         respect thereto; providing an effective date.

24

25  Be It Enacted by the Legislature of the State of Florida:

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27         Section 1.  Subsections (1) and (14) of section 212.08,

28  Florida Statutes, are amended, and paragraphs (qq) and (rr)

29  are added to subsection (7) of that section, to read:

30         212.08  Sales, rental, use, consumption, distribution,

31  and storage tax; specified exemptions.--The sale at retail,

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    Florida Senate - 1998                                  SB 1504
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  1  the rental, the use, the consumption, the distribution, and

  2  the storage to be used or consumed in this state of the

  3  following are hereby specifically exempt from the tax imposed

  4  by this chapter.

  5         (1)  EXEMPTIONS; GENERAL GROCERIES.--

  6         (a)  Food products for human consumption are exempt

  7  from the tax imposed by this chapter.

  8         (b)  As used in this subsection, the term "food

  9  products" means edible commodities, whether processed, cooked,

10  raw, canned, or in any other form, which are generally

11  regarded as food.  The term includes, but is not limited to:

12         1.  Cereals and cereal products, baked goods,

13  oleomargarine, meat and meat products, fish and seafood

14  products, frozen foods and dinners, poultry, eggs and egg

15  products, vegetables and vegetable products, fruit and fruit

16  products, spices, salt, sugar and sugar products, milk and

17  dairy products, and products intended to be mixed with milk.

18         2.  Natural fruit or vegetable juices or their

19  concentrates or reconstituted natural concentrated fruit or

20  vegetable juices, whether frozen or unfrozen, dehydrated,

21  powdered, granulated, sweetened or unsweetened, seasoned with

22  salt or spice, or unseasoned; and coffee, coffee substitutes,

23  tea, or cocoa, unless these products are sold in a liquid

24  form.

25         3.  Bakery products sold by bakeries, pastry shops, or

26  like establishments which do not have eating facilities.

27         (c)  The exemption provided by this subsection does not

28  apply:

29         1.  When the food products are sold as meals for

30  consumption on or off the premises of the dealer.

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    Florida Senate - 1998                                  SB 1504
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  1         2.  When the food products are furnished, prepared, or

  2  served for consumption at tables, chairs, or counters or from

  3  trays, glasses, dishes, or other tableware, whether provided

  4  by the dealer or by a person with whom the dealer contracts to

  5  furnish, prepare, or serve food products to others.

  6         3.  When the food products are ordinarily sold for

  7  immediate consumption on the premises or near a location at

  8  which parking facilities are provided primarily for the use of

  9  patrons in consuming the products purchased at the location,

10  even though such products are sold on a "take out" or "to go"

11  order and are actually packaged or wrapped and taken from the

12  premises of the dealer.

13         4.  To sandwiches sold ready for immediate consumption

14  on or off the premises.

15         5.  When the food products are sold ready for immediate

16  consumption within a place, the entrance to which is subject

17  to an admission charge.

18         6.  When the food products are sold as hot prepared

19  food products.

20         7.  To soft drinks, which include, but are not limited

21  to, any nonalcoholic beverage, any preparation or beverage

22  commonly referred to as a "soft drink," or any noncarbonated

23  drink made from milk derivatives or tea, when sold in cans or

24  similar containers.

25         8.  To ice cream, frozen yogurt, and similar frozen

26  dairy or nondairy products in cones, small cups, or pints,

27  popsicles, frozen fruit bars, or other novelty items, whether

28  or not sold separately.

29         9.  To food prepared, whether on or off the premises,

30  and sold for immediate consumption.  This does not apply to

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  1  food prepared off the premises and sold in the original sealed

  2  container, or the slicing of products into smaller portions.

  3         10.  When the food products are sold through a vending

  4  machine, pushcart, motor vehicle, or any other form of

  5  vehicle.

  6         11.  To candy and any similar product regarded as candy

  7  or confection, based on its normal use, as indicated on the

  8  label or advertising thereof.

  9         12.  To bakery products sold by bakeries, pastry shops,

10  or like establishments which have eating facilities, except

11  when sold for consumption off the premises.

12         13.  When food products are served, prepared, or sold

13  in or by restaurants, lunch counters, cafeterias, hotels,

14  taverns, or other like places of business.

15         (d)  As used in this subsection, the term:

16         1.  "For consumption off the premises" means that the

17  food or drink is intended by the customer to be consumed at a

18  place away from the dealer's premises.

19         2.  "For consumption on the premises" means that the

20  food or drink sold may be immediately consumed on the premises

21  where the dealer conducts his or her business.  In determining

22  whether an item of food is sold for immediate consumption,

23  there must be considered the customary consumption practices

24  prevailing at the selling facility.

25         3.  "Premises" must be construed broadly, and means,

26  but is not limited to, the lobby, aisle, or auditorium of a

27  theater; the seating, aisle, or parking area of an arena,

28  rink, or stadium; or the parking area of a drive-in or outdoor

29  theater.  The premises of a caterer with respect to catered

30  meals or beverages is the place where such meals or beverages

31  are served.

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    Florida Senate - 1998                                  SB 1504
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  1         4.  "Hot prepared food products" means those products,

  2  items, or components that have been prepared for sale in a

  3  heated condition and that are sold at any temperature that is

  4  higher than the air temperature of the room or place where

  5  they are sold. The term "hot prepared food products" includes

  6  a combination of hot and cold food items or components with

  7  respect to which a single price has been established for the

  8  combination and the food products are sold in such

  9  combination, such as a hot meal, a hot specialty dish or

10  serving, or a hot sandwich or hot pizza, including cold

11  components or side items.

12         (a)  There are exempt from the tax imposed by this

13  chapter food and drinks for human consumption except candy.

14  Unless the exemption provided by paragraph (7)(q) for school

15  lunches, paragraph (7)(i) for meals to certain patients or

16  inmates, paragraph (7)(k) for meals provided by certain

17  nonprofit organizations, or paragraph (7)(z) for food or

18  drinks sold through vending machines pertains, none of such

19  items of food or drinks means:

20         1.  Food or drinks served, prepared, or sold in or by

21  restaurants; drugstores; lunch counters; cafeterias; hotels;

22  amusement parks; racetracks; taverns; concession stands at

23  arenas, auditoriums, carnivals, fairs, stadiums, theaters, or

24  other like places of business; or by any business or place

25  required by law to be licensed by the Division of Hotels and

26  Restaurants of the Department of Business and Professional

27  Regulation, except bakery products sold in or by pastry shops,

28  doughnut shops, or like establishments for consumption off the

29  premises;

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  1         2.  Foods and drinks sold ready for immediate

  2  consumption from vending machines, pushcarts, motor vehicles,

  3  or any other form of vehicle;

  4         3.  Soft drinks, which include, but are not limited to,

  5  any nonalcoholic beverage, any preparation or beverage

  6  commonly referred to as a "soft drink," or any noncarbonated

  7  drink made from milk derivatives or tea, when sold in cans or

  8  similar containers. The term "soft drink" does not include:

  9  natural fruit or vegetable juices or their concentrates or

10  reconstituted natural concentrated fruit or vegetable juices,

11  whether frozen or unfrozen, dehydrated, powdered, granulated,

12  sweetened or unsweetened, seasoned with salt or spice, or

13  unseasoned; coffee or coffee substitutes; tea except when sold

14  in containers as provided herein; cocoa; products intended to

15  be mixed with milk; or natural fluid milk;

16         4.  Foods or drinks cooked or prepared on the seller's

17  premises and sold ready for immediate consumption either on or

18  off the premises, excluding bakery products for off-premises

19  consumption unless such foods are taxed under subparagraph 1.

20  or subparagraph 2.; or

21         5.  Sandwiches sold ready for immediate consumption.

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23  For the purposes of this paragraph, "seller's premises" shall

24  be construed broadly, and means, but is not limited to, the

25  lobby, aisle, or auditorium of a theater; the seating, aisle,

26  or parking area of an arena, rink, or stadium; or the parking

27  area of a drive-in or outdoor theater. The premises of a

28  caterer with respect to catered meals or beverages shall be

29  the place where such meals or beverages are served.

30         (e)(b)1.  Food or drinks not exempt under paragraphs

31  (a), (b), (c), and (d) are paragraph (a) shall be exempt,

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    Florida Senate - 1998                                  SB 1504
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  1  notwithstanding those paragraphs that paragraph, when

  2  purchased with food coupons or Special Supplemental Food

  3  Program for Women, Infants, and Children vouchers issued under

  4  authority of federal law.

  5         2.  This paragraph is effective only while federal law

  6  prohibits a state's participation in the federal food coupon

  7  program or Special Supplemental Food Program for Women,

  8  Infants, and Children if there is an official determination

  9  that state or local sales taxes are collected within that

10  state on purchases of food or drinks with such coupons.

11         3.  This paragraph shall not apply to any food or

12  drinks on which federal law shall permit sales taxes without

13  penalty, such as termination of the state's participation.

14         4.  Notwithstanding any other provision of law, the

15  department shall make refunds or allow credits to a

16  distributor equal to the fee imposed and paid under s.

17  403.7197 on containers purchased by consumers with food

18  coupons or Special Supplemental Food Program for Women,

19  Infants, and Children vouchers issued under authority of

20  federal law.

21         (7)  MISCELLANEOUS EXEMPTIONS.--

22         (qq)  Complimentary items.--There is exempt from the

23  tax imposed by this chapter:

24         1.  Any food or drink, whether or not cooked or

25  prepared on the premises, provided without charge as a sample

26  or for the convenience of customers by a dealer that primarily

27  sells food product items at retail.

28         2.  Any item given to a customer as part of a price

29  guarantee plan related to point-of-sale errors by a dealer

30  that primarily sells food products at retail.

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    Florida Senate - 1998                                  SB 1504
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  1  The exemptions in this paragraph do not apply to businesses

  2  the primary activity of which is serving prepared meals or

  3  alcoholic beverages for immediate consumption.

  4         (rr)  Donated foods or beverages.--Any food or beverage

  5  donated by a dealer that sells food products at retail to a

  6  food bank or an organization that holds current exemption from

  7  federal corporate income tax under s. 501(c) of the Internal

  8  Revenue Code of 1986, as amended, is exempt from the tax

  9  imposed by this chapter.

10         (14)(a)  The department shall establish a technical

11  assistance advisory committee with public and private sector

12  members, including representatives of both manufacturers and

13  retailers, to advise the Department of Revenue and the

14  Department of Children and Family Health and Rehabilitative

15  Services in determining the taxability of specific products

16  and product lines pursuant to subsection (1) and paragraph

17  (2)(a).  In determining taxability and in preparing a list of

18  specific products and product lines which are or are not

19  taxable, the committee shall not be subject to the provisions

20  of chapter 120. Private sector members shall not be

21  compensated for serving on the committee.

22         (b)  The department, with the advice of the committee,

23  shall develop guidelines for determining the taxability of

24  specific products.  The guidelines are not subject to chapter

25  120 and must be a public record.  In developing the

26  guidelines, if the department determines that a proposed

27  guideline substantially affects a particular person, it must

28  notify the person of the development of the proposed

29  guideline.  The guidelines must be submitted to the

30  Administrative Procedures Committee, and the department shall

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  1  respond to any comments made by the committee or to any person

  2  who is substantially affected by the guidelines.

  3         (c)  The advisory committee shall use guidelines

  4  developed by the department in making its recommendations.

  5  The committee shall forward its recommendations to the

  6  department, which shall determine the taxability of specific

  7  products.  The determination must be a public record, is final

  8  upon its publication, and remains effective unless a change of

  9  determination is published.  The determination may be

10  challenged in a proceeding conducted under ss. 120.569 and

11  120.57.

12         (d)  The department is authorized to develop a central

13  database and to publish the determination as to the taxability

14  of specific products in a manner that generally provides

15  retailers with information enabling them to properly tax

16  products based on their universal product codes.  To assure

17  maximum benefit to the retail community, the advisory

18  committee shall help in identifying the scope of information

19  that should be included in the central database and the

20  methods appropriate for assuring efficient and effective

21  communication.  Information contained in the central database

22  is not subject to chapter 120 and must be a public record.

23         Section 2.  This act shall take effect July 1, 1998.

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  1            *****************************************

  2                       LEGISLATIVE SUMMARY

  3
      Revises the sales tax exemption for food and drinks.
  4    Provides definitions and clarifying language.  Provides
      an exemption for certain foods, drinks, and other items
  5    provided to customers on a complimentary basis by a
      dealer who sells food products at retail, and an
  6    exemption for foods and beverages donated by such dealers
      to certain organizations.
  7

  8    Revises provisions relating to the technical assistance
      advisory committee established to provide advice in
  9    determining taxability of foods and medicines.  Provides
      membership requirements.  Directs the Department of
10    Revenue to develop guidelines for such determination and
      provides requirements with respect thereto.  Provides for
11    use of the guidelines by the committee.  Provides for
      determination of the taxability of specific products by
12    the department, and authorizes the department to develop
      a central database with respect thereto.
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