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House Bill 0315

Florida House of Representatives - 1997 HB 315 By Representative Fuller 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: 26 27 Section 1. Subsections (1) and (14) of section 212.08, 28 Florida Statutes, 1996 Supplement, are amended, and paragraphs 29 (nn) and (oo) are added to subsection (7) of said section, to 30 read: 31 1 CODING: Words stricken are deletions; words underlined are additions. Florida House of Representatives - 1997 HB 315 527-126-97 1 212.08 Sales, rental, use, consumption, distribution, 2 and storage tax; specified exemptions.--The sale at retail, 3 the rental, the use, the consumption, the distribution, and 4 the storage to be used or consumed in this state of the 5 following are hereby specifically exempt from the tax imposed 6 by this part. 7 (1) EXEMPTIONS; GENERAL GROCERIES.-- 8 (a) Food products for human consumption are exempt 9 from the tax imposed by this chapter. 10 (b) As used in this subsection, "food products" means 11 edible commodities, whether processed, cooked, raw, canned, or 12 in any other form, which are generally regarded as food. This 13 includes, but is not limited to: 14 1. Cereals and cereal products, baked goods, 15 oleomargarine, meat and meat products, fish and seafood 16 products, frozen foods and dinners, poultry, eggs and egg 17 products, vegetables and vegetable products, fruit and fruit 18 products, spices, salt, sugar and sugar products, milk and 19 dairy products, and products intended to be mixed with milk. 20 2. Natural fruit or vegetable juices or their 21 concentrates or reconstituted natural concentrated fruit or 22 vegetable juices, whether frozen or unfrozen, dehydrated, 23 powdered, granulated, sweetened or unsweetened, seasoned with 24 salt or spice, or unseasoned; and coffee, coffee substitutes, 25 tea, or cocoa, unless these products are sold in a liquid 26 form. 27 3. Bakery products sold by bakeries, pastry shops, or 28 like establishments which do not have eating facilities. 29 (c) The exemption provided by this subsection does not 30 apply: 31 2 CODING: Words stricken are deletions; words underlined are additions. Florida House of Representatives - 1997 HB 315 527-126-97 1 1. When the food products are sold as meals for 2 consumption on or off the premises of the dealer. 3 2. When the food products are furnished, prepared, or 4 served for consumption at tables, chairs, or counters or from 5 trays, glasses, dishes, or other tableware, whether provided 6 by the dealer or by a person with whom the dealer contracts to 7 furnish, prepare, or serve food products to others. 8 3. When the food products are ordinarily sold for 9 immediate consumption on the premises or near a location at 10 which parking facilities are provided primarily for the use of 11 patrons in consuming the products purchased at the location, 12 even though such products are sold on a "take out" or "to go" 13 order and are actually packaged or wrapped and taken from the 14 premises of the dealer. 15 4. To sandwiches sold ready for immediate consumption 16 on or off the premises. 17 5. When the food products are sold ready for immediate 18 consumption within a place, the entrance to which is subject 19 to an admission charge. 20 6. When the food products are sold as hot prepared 21 food products. 22 7. To soft drinks, which include, but are not limited 23 to, any nonalcoholic beverage, any preparation or beverage 24 commonly referred to as a "soft drink," or any noncarbonated 25 drink made from milk derivatives or tea, when sold in cans or 26 similar containers. 27 8. To ice cream, frozen yogurt, and similar frozen 28 diary or nondairy products in cones, small cups, or pints, 29 popsicles, frozen fruit bars, or other novelty items, whether 30 or not sold separately. 31 3 CODING: Words stricken are deletions; words underlined are additions. Florida House of Representatives - 1997 HB 315 527-126-97 1 9. To food prepared, whether on or off the premises, 2 and sold for immediate consumption. This does not apply to 3 food prepared off the premises and sold in the original sealed 4 container, or the slicing of products into smaller portions. 5 10. When the food products are sold through a vending 6 machine, pushcart, motor vehicle, or any other form of 7 vehicle. 8 11. To candy and any similar product regarded as candy 9 or confection, based on its normal use, as indicated on the 10 label or advertising thereof. 11 12. To bakery products sold by bakeries, pastry shops, 12 or like establishments which have eating facilities, except 13 when sold for consumption off the premises. 14 13. When food products are served, prepared, or sold 15 in or by restaurants, lunch counters, cafeterias, hotels, 16 taverns, or other like places of business. 17 (d) As used in this subsection: 18 1. "For consumption off the premises" means that the 19 food or drink is intended by the customer to be consumed at a 20 place away from the dealer's premises. 21 2. "For consumption on the premises" means that the 22 food or drink sold may be immediately consumed on the premises 23 where the dealer conducts his or her business. In determining 24 whether an item of food is sold for immediate consumption, 25 there shall be considered the customary consumption practices 26 prevailing at the selling facility. 27 3. "Premises" shall be construed broadly, and means, 28 but is not limited to, the lobby, aisle, or auditorium of a 29 theater; the seating, aisle, or parking area of an arena, 30 rink, or stadium; or the parking area of a drive-in or outdoor 31 theater. The premises of a caterer with respect to catered 4 CODING: Words stricken are deletions; words underlined are additions. Florida House of Representatives - 1997 HB 315 527-126-97 1 meals or beverages shall be the place where such meals or 2 beverages are served. 3 4. "Hot prepared food products" means those products, 4 items, or components which have been prepared for sale in a 5 heated condition and which are sold at any temperature which 6 is higher than the air temperature of the room or place where 7 they are sold. "Hot prepared food products," for the purposes 8 of this subsection, includes a combination of hot and cold 9 food items or components where a single price has been 10 established for the combination and the food products are sold 11 in such combination, such as a hot meal, a hot specialty dish 12 or serving, or a hot sandwich or hot pizza, including cold 13 components or side items. 14 (a) There are exempt from the tax imposed by this 15 chapter food and drinks for human consumption except candy. 16 Unless the exemption provided by paragraph (7)(q) for school 17 lunches, paragraph (7)(i) for meals to certain patients or 18 inmates, paragraph (7)(k) for meals provided by certain 19 nonprofit organizations, or paragraph (7)(z) for food or 20 drinks sold through vending machines pertains, none of such 21 items of food or drinks means: 22 1. Food or drinks served, prepared, or sold in or by 23 restaurants; drugstores; lunch counters; cafeterias; hotels; 24 amusement parks; racetracks; taverns; concession stands at 25 arenas, auditoriums, carnivals, fairs, stadiums, theaters, or 26 other like places of business; or by any business or place 27 required by law to be licensed by the Division of Hotels and 28 Restaurants of the Department of Business and Professional 29 Regulation, except bakery products sold in or by pastry shops, 30 doughnut shops, or like establishments for consumption off the 31 premises; 5 CODING: Words stricken are deletions; words underlined are additions. Florida House of Representatives - 1997 HB 315 527-126-97 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. 22 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) paragraph (a) shall be exempt, 6 CODING: Words stricken are deletions; words underlined are additions. Florida House of Representatives - 1997 HB 315 527-126-97 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 (nn) 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. 31 7 CODING: Words stricken are deletions; words underlined are additions. Florida House of Representatives - 1997 HB 315 527-126-97 1 The exemptions in this paragraph do not apply to businesses 2 with the primary activity of serving prepared meals or 3 alcoholic beverages for immediate consumption. 4 (oo) 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 which holds current exemption 7 from federal corporate income tax pursuant to s. 501(c) of the 8 Internal Revenue Code of 1986, as amended, is exempt from the 9 tax 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 Health and Rehabilitative Services in 15 determining the taxability of specific products and product 16 lines pursuant to subsection (1) and paragraph (2)(a). In 17 determining taxability and in preparing a list of specific 18 products and product lines which are or are not taxable, the 19 committee shall not be subject to the provisions of chapter 20 120. Private sector members shall not be compensated for 21 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 shall not be subject to the 25 provisions of chapter 120 and shall be a public record. In 26 developing the guidelines, if the department determines that a 27 proposed guideline substantially affects a particular person, 28 it shall notify the person of the development of the proposed 29 guideline. The guidelines shall be submitted to the 30 Administrative Procedures Committee and the department shall 31 8 CODING: Words stricken are deletions; words underlined are additions. Florida House of Representatives - 1997 HB 315 527-126-97 1 respond to any comments made by the committee or to any person 2 substantially affected by the guidelines. 3 (c) The advisory committee shall use guidelines 4 determined 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 shall be a public record and 8 shall be final upon its publication and shall remain effective 9 unless a change of determination is published. The 10 determination may be challenged pursuant to a proceeding 11 conducted under ss. 120.569 and 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 which generally provides 15 retailers with information to properly tax products based on 16 their universal product codes. To assure maximum benefit to 17 the retail community, the advisory committee shall help in 18 identifying the scope of information that should be included 19 in the central database and the appropriate methods to assure 20 efficient and effective communication. Information contained 21 in the central database shall not be subject to the provisions 22 of chapter 120 and shall be a public record. 23 Section 2. This act shall take effect July 1, 1997. 24 25 26 27 28 29 30 31 9 CODING: Words stricken are deletions; words underlined are additions. Florida House of Representatives - 1997 HB 315 527-126-97 1 ***************************************** 2 HOUSE 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. 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 10