Senate Bill 1694er

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  1

  2         An act relating to taxation (RAB); amending s.

  3         212.08, F.S., relating to the tax on sales,

  4         use, and other transactions; revising the sales

  5         tax exemption provided for food and drinks;

  6         providing definitions; exempting additional

  7         medical supplies and equipment; defining the

  8         term "prescriptions"; revising the exemption

  9         for school books and school lunches; providing

10         exemptions with respect to parent-teacher

11         organizations and associations, to schools with

12         grades K through 12, to mobile home lot

13         improvements, and to sales of certain personal

14         property supported through the Veterans

15         Administration; providing a partial exemption

16         for certain commercial fishing vessels;

17         providing guidelines for determining

18         applicability of sales surtaxes to certain

19         transactions; providing an exemption for

20         certain foods, drinks, and other items provided

21         to customers on a complimentary basis by a

22         dealer who sells food products at retail;

23         providing an exemption for foods and beverages

24         donated by such dealers to certain

25         organizations; revising provisions relating to

26         the technical assistance advisory committee

27         established to provide advice in determining

28         the taxability of specific products; providing

29         membership requirements; amending s. 213.22,

30         F.S.; providing for the issuance of technical

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  1         assistance advisements; providing an effective

  2         date.

  3

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

  5

  6         Section 1.  Subsections (1), (2), and (14), paragraph

  7  (q) of subsection (7), and paragraph (a) of subsection (8) of

  8  section 212.08, Florida Statutes, are amended, and paragraphs

  9  (qq), (rr), (ss), (tt), and (uu) are added to subsection (7)

10  of that section, to read:

11         212.08  Sales, rental, use, consumption, distribution,

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

13  the rental, the use, the consumption, the distribution, and

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

15  following are hereby specifically exempt from the tax imposed

16  by this chapter.

17         (1)  EXEMPTIONS; GENERAL GROCERIES.--

18         (a)  Food products for human consumption are exempt

19  from the tax imposed by this chapter.

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

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

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

23  regarded as food. This includes, but is not limited to:

24         1.  Cereals and cereal products, baked goods,

25  oleomargarine, meat and meat products, fish and seafood

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

27  products, vegetables and vegetable products, fruit and fruit

28  products, spices, salt, sugar and sugar products, milk and

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

30         2.  Natural fruit or vegetable juices or their

31  concentrates or reconstituted natural concentrated fruit or


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  1  vegetable juices, whether frozen or unfrozen, dehydrated,

  2  powdered, granulated, sweetened or unsweetened, seasoned with

  3  salt or spice, or unseasoned; coffee, coffee substitutes, or

  4  cocoa; and tea, unless it is sold in a liquid form.

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

  6  like establishments that do not have eating facilities.

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

  8  apply:

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

10  consumption on or off the premises of the dealer.

11         2.  When the food products are furnished, prepared, or

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

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

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

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

16         3.  When the food products are ordinarily sold for

17  immediate consumption on the premises or near a location at

18  which parking facilities are provided primarily for the use of

19  patrons in consuming the products purchased at the location,

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

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

22  premises of the dealer.

23         4.  To sandwiches sold ready for immediate consumption

24  on or off the premises.

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

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

27  to an admission charge.

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

29  food products.

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

31  to, any nonalcoholic beverage, any preparation or beverage


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

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

  3  similar containers.

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

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

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

  7  or not sold separately.

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

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

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

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

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

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

14  vehicle.

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

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

17  label or advertising thereof.

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

19  or like establishments that have eating facilities, except

20  when sold for consumption off the premises.

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

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

23  taverns, or other like places of business.

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

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

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

27  place away from the dealer's premises.

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

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

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

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


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  1  there shall be considered the customary consumption practices

  2  prevailing at the selling facility.

  3         3.  "Premises" shall be construed broadly, and means,

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

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

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

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

  8  meals or beverages shall be the place where such meals or

  9  beverages are served.

10         4.  "Hot prepared food products" means those products,

11  items, or components which have been prepared for sale in a

12  heated condition and which are sold at any temperature that is

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

14  they are sold. "Hot prepared food products," for the purposes

15  of this subsection, includes a combination of hot and cold

16  food items or components where a single price has been

17  established for the combination and the food products are sold

18  in such combination, such as a hot meal, a hot specialty dish

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

20  components or side items.

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

22  chapter food and drinks for human consumption except candy.

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

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

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

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

27  drinks sold through vending machines pertains, none of such

28  items of food or drinks means:

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

30  restaurants; drugstores; lunch counters; cafeterias; hotels;

31  amusement parks; racetracks; taverns; concession stands at


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

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

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

  4  Restaurants of the Department of Business and Professional

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

  6  doughnut shops, or like establishments for consumption off the

  7  premises;

  8         2.  Foods and drinks sold ready for immediate

  9  consumption from vending machines, pushcarts, motor vehicles,

10  or any other form of vehicle;

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

12  any nonalcoholic beverage, any preparation or beverage

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

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

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

16  natural fruit or vegetable juices or their concentrates or

17  reconstituted natural concentrated fruit or vegetable juices,

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

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

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

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

22  be mixed with milk; or natural fluid milk;

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

24  premises and sold ready for immediate consumption either on or

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

26  consumption unless such foods are taxed under subparagraph 1.

27  or subparagraph 2.; or

28         5.  Sandwiches sold ready for immediate consumption.

29

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

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


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

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

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

  4  caterer with respect to catered meals or beverages shall be

  5  the place where such meals or beverages are served.

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

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

  8  notwithstanding those paragraphs that paragraph, when

  9  purchased with food coupons or Special Supplemental Food

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

11  authority of federal law.

12         2.  This paragraph is effective only while federal law

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

14  program or Special Supplemental Food Program for Women,

15  Infants, and Children if there is an official determination

16  that state or local sales taxes are collected within that

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

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

19  drinks on which federal law shall permit sales taxes without

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

21         4.  Notwithstanding any other provision of law, the

22  department shall make refunds or allow credits to a

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

24  403.7197 on containers purchased by consumers with food

25  coupons or Special Supplemental Food Program for Women,

26  Infants, and Children vouchers issued under authority of

27  federal law.

28         (2)  EXEMPTIONS; MEDICAL.--

29         (a)  There shall be exempt from the tax imposed by this

30  chapter any medical products and supplies product, supply, or

31  medicine dispensed in a retail establishment by a pharmacist


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  1  licensed by the state, according to an individual prescription

  2  or prescriptions written by a prescriber authorized by law to

  3  prescribe medicinal drugs; hypodermic needles; hypodermic

  4  syringes; chemical compounds and test kits used for the

  5  diagnosis or treatment of human disease, illness, or injury;

  6  and common household remedies recommended and generally sold

  7  for internal or external use in the cure, mitigation,

  8  treatment, or prevention of illness or disease in human

  9  beings, but not including cosmetics or toilet articles,

10  notwithstanding the presence of medicinal ingredients therein,

11  according to a list prescribed and approved by the Department

12  of Health and Rehabilitative Services, which list shall be

13  certified to the Department of Revenue from time to time and

14  included in the rules promulgated by the Department of

15  Revenue. There shall also be exempt from the tax imposed by

16  this chapter artificial eyes and limbs; orthopedic shoes;

17  prescription eyeglasses and items incidental thereto or which

18  become a part thereof; dentures; hearing aids; crutches;

19  prosthetic and orthopedic appliances; and funerals.  In

20  addition, any items intended for one-time use which transfer

21  essential optical characteristics to contact lenses shall be

22  exempt from the tax imposed by this chapter; however, this

23  exemption shall apply only after $100,000 of the tax imposed

24  by this chapter on such items has been paid in any calendar

25  year by a taxpayer who claims the exemption in such year.

26  Funeral directors shall pay tax on all tangible personal

27  property used by them in their business.

28         (b)  For the purposes of this subsection:

29         1.  "Prosthetic and orthopedic appliances" means any

30  apparatus, instrument, device, or equipment used to replace or

31  substitute for any missing part of the body, to alleviate the


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  1  malfunction of any part of the body, or to assist any disabled

  2  person in leading a normal life by facilitating such person's

  3  mobility.  Such apparatus, instrument, device, or equipment

  4  shall be exempted according to an individual prescription or

  5  prescriptions written by a physician licensed under chapter

  6  458, chapter 459, chapter 460, chapter 461, or chapter 466, or

  7  according to a list prescribed and approved by the Department

  8  of Health and Rehabilitative Services, which list shall be

  9  certified to the Department of Revenue from time to time and

10  included in the rules promulgated by the Department of

11  Revenue.

12         2.  "Cosmetics" means articles intended to be rubbed,

13  poured, sprinkled, or sprayed on, introduced into, or

14  otherwise applied to the human body for cleansing,

15  beautifying, promoting attractiveness, or altering the

16  appearance and also means articles intended for use as a

17  compound of any such articles, including, but not limited to,

18  cold creams, suntan lotions, makeup, and body lotions.

19         3.  "Toilet articles" means any article advertised or

20  held out for sale for grooming purposes and those articles

21  that are customarily used for grooming purposes, regardless of

22  the name by which they may be known, including, but not

23  limited to, soap, toothpaste, hair spray, shaving products,

24  colognes, perfumes, shampoo, deodorant, and mouthwash.

25         4.  "Prescription" includes any order for drugs or

26  medicinal supplies written or transmitted by any means of

27  communication by a duly licensed practitioner authorized by

28  the laws of the state to prescribe such drugs or medicinal

29  supplies and intended to be dispensed by a pharmacist. The

30  term also includes an orally transmitted order by the lawfully

31  designated agent of such practitioner. The term also includes


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  1  an order written or transmitted by a practitioner licensed to

  2  practice in a jurisdiction other than this state, but only if

  3  the pharmacist called upon to dispense such order determines,

  4  in the exercise of his or her professional judgment, that the

  5  order is valid and necessary for the treatment of a chronic or

  6  recurrent illness. The term also includes a pharmacist's order

  7  for a product selected from the formulary created pursuant to

  8  s. 465.186. A prescription may be retained in written form, or

  9  the pharmacist may cause it to be recorded in a

10  data-processing system, provided that such order can be

11  produced in printed form upon lawful request.

12         (c)  Chlorine shall not be exempt from the tax imposed

13  by this chapter when used for the treatment of water in

14  swimming pools.

15         (d)  Lithotripters are exempt.

16         (e)  Human organs are exempt.

17         (f)  Sales of drugs to or by physicians, dentists,

18  veterinarians, and hospitals in connection with medical

19  treatment are exempt.

20         (g)  Medical products and supplies used in the cure,

21  mitigation, alleviation, prevention, or treatment of injury,

22  disease, or incapacity which are temporarily or permanently

23  incorporated into a patient or client by a practitioner of the

24  healing arts licensed in the state are exempt.

25         (h)  The purchase by a veterinarian of commonly

26  recognized substances possessing curative or remedial

27  properties which are ordered and dispensed as treatment for a

28  diagnosed health disorder by or on the prescription of a duly

29  licensed veterinarian, and which are applied to or consumed by

30  animals for alleviation of pain or the cure or prevention of

31  sickness, disease, or suffering are exempt. Also exempt are


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  1  the purchase by a veterinarian of antiseptics, absorbent

  2  cotton, gauze for bandages, lotions, vitamins, and worm

  3  remedies.

  4         (i)  X-ray opaques, also known as opaque drugs and

  5  radiopaque, such as the various opaque dyes and barium

  6  sulphate, when used in connection with medical x-rays for

  7  treatment of bodies of humans and animals, are exempt.

  8         (j)  Parts, special attachments, special lettering, and

  9  other like items that are added to or attached to tangible

10  personal property so that a handicapped person can use them

11  are exempt when such items are purchased by a person pursuant

12  to an individual prescription.

13         (k)(d)  This subsection shall be strictly construed and

14  enforced.

15         (7)  MISCELLANEOUS EXEMPTIONS.--

16         (q)  School books and school lunches.--This exemption

17  applies to school books used in regularly prescribed courses

18  of study, and to school lunches served to students, in public,

19  parochial, or nonprofit schools operated for and attended by

20  pupils of grades K through 1 though 12.  Yearbooks, magazines,

21  newpapers, directories, bulletins, and similar publications

22  distributed by such educational institutions to their students

23  are also exempt. School books and food sold or served at

24  community colleges and other institutions of higher learning

25  are taxable.

26         (qq)  Parent-teacher organizations, parent-teacher

27  associations, and schools having grades K through

28  12.--Parent-teacher organizations and associations qualified

29  as educational institutions under paragraph (o) associated

30  with schools having grades K through 12, and schools having

31  grades K through 12, may pay tax to their suppliers on the


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  1  cost price of school materials and supplies purchased, rented,

  2  or leased for resale or rental to students in grades K through

  3  12, of items sold for fund-raising purpose, and of items sold

  4  through vending machines located on the school premises, in

  5  lieu of collecting the tax imposed by this chapter from the

  6  purchaser. This paragraph also applies to food or beverages

  7  sold through vending machines located in the student lunchroom

  8  or dining room of a school having kindergarten through grade

  9  12.

10         (rr)  Mobile home lot improvements.--Items purchased by

11  developers for use in making improvements to a mobile home lot

12  owned by the developer may be purchased tax-exempt as a sale

13  for resale if made pursuant to a contract that requires the

14  developer to sell a mobile home to a purchaser, place the

15  mobile home on the lot, and make the improvements to the lot

16  for a single lump-sum price. The developer must collect and

17  remit sales tax on the entire lump-sum price.

18         (ss)  Veterans Administration.--When a veteran of the

19  armed forces purchases an aircraft, boat, mobile home, motor

20  vehicle, or other vehicle from a dealer pursuant to the

21  provisions of s. 3902(a), Title 38, United States Code, or any

22  successor provision of the United States Code, the amount that

23  is paid directly to the dealer by the Veterans Administration

24  is not taxable. However, any portion of the purchase price

25  which is paid directly to the dealer by the veteran is

26  taxable.

27         (tt)  Complimentary items.--There is exempt from the

28  tax imposed by this chapter:

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

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

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

  2  sells food product items at retail.

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

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

  5  that primarily sells food products at retail.

  6

  7  The exemptions in this paragraph do not apply to businesses

  8  with the primary activity of serving prepared meals or

  9  alcoholic beverages for immediate consumption.

10         (uu)  Donated foods or beverages.--Any food or beverage

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

12  food bank or an organization that holds a current exemption

13  from federal corporate income tax pursuant to s. 501(c) of the

14  Internal Revenue Code of 1986, as amended, is exempt from the

15  tax imposed by this chapter.

16         (8)  PARTIAL EXEMPTIONS; VESSELS ENGAGED IN INTERSTATE

17  OR FOREIGN COMMERCE.--

18         (a)  The sale or use of vessels and parts thereof used

19  to transport persons or property in interstate or foreign

20  commerce, including commercial fishing vessels, is subject to

21  the taxes imposed in this chapter only to the extent provided

22  herein.  The basis of the tax shall be the ratio of intrastate

23  mileage to interstate or foreign mileage traveled by the

24  carrier's vessels which were used in interstate or foreign

25  commerce and which had at least some Florida mileage during

26  the previous fiscal year.  The ratio would be determined at

27  the close of the carrier's fiscal year.  This ratio shall be

28  applied each month to the total Florida purchases of such

29  vessels and parts thereof which are used in Florida to

30  establish that portion of the total used and consumed in

31  intrastate movement and subject to the tax at the applicable


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  1  rate.  The basis for imposition of any discretionary surtax

  2  shall be as set forth in s. 212.054. Items, appropriate to

  3  carry out the purposes for which a vessel is designed or

  4  equipped and used, purchased by the owner, operator, or agent

  5  of a vessel for use on board such vessel shall be deemed to be

  6  parts of the vessel upon which the same are used or consumed.

  7  Vessels and parts thereof used to transport persons or

  8  property in interstate and foreign commerce are hereby

  9  determined to be susceptible to a distinct and separate

10  classification for taxation under the provisions of this

11  chapter.  Vessels and parts thereof used exclusively in

12  intrastate commerce do not qualify for the proration of tax.

13         (14)  TECHNICAL ASSISTANCE ADVISORY COMMITTEE.--The

14  department shall establish a technical assistance advisory

15  committee with public and private sector members, including

16  representatives of both manufacturers and retailers, to advise

17  the Department of Revenue and the Department of Health and

18  Rehabilitative Services in determining the taxability of

19  specific products and product lines pursuant to subsection (1)

20  and paragraph (2)(a).  In determining taxability and in

21  preparing a list of specific products and product lines that

22  which are or are not taxable, the committee shall not be

23  subject to the provisions of chapter 120. Private sector

24  members shall not be compensated for serving on the committee.

25         Section 2.  Subsection (1) of section 213.22, Florida

26  Statutes, is amended to read:

27         213.22  Technical assistance advisements.--

28         (1)  The department may issue informal technical

29  assistance advisements to persons, upon written request, as to

30  the position of the department on the tax consequences of a

31  stated transaction or event, under existing statutes, rules,


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  1  or policies. After the issuance of an assessment, a technical

  2  assistance advisement may not be issued to a taxpayer who

  3  requests an advisement relating to the tax or liability for

  4  tax in respect to which the assessment has been made, except

  5  that a technical assistance advisement may be issued to a

  6  taxpayer who requests an advisement relating to the exemptions

  7  in s. 212.08(1) or (2) at any time. Technical assistance

  8  advisements shall have no precedential value except to the

  9  taxpayer who requests the advisement and then only for the

10  specific transaction addressed in the technical assistance

11  advisement, unless specifically stated otherwise in the

12  advisement.  Any modification of an advisement shall be

13  prospective only.  A technical assistance advisement is not an

14  order issued pursuant to s. 120.565 or s. 120.569 or a rule or

15  policy of general applicability under s. 120.54.  The

16  provisions of s. 120.53(1) are not applicable to technical

17  assistance advisements.

18         Section 3.  This act shall take effect July 1, 1998.

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