CODING: Words stricken are deletions; words underlined are additions.House Bill 0315c1
Florida House of Representatives - 1997 CS/HB 315
By the Committee on Business Development & International
Trade and Representatives Fuller, Feeney and Saunders
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 CS/HB 315
170-838-97
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) There are exempted from the tax imposed by this
9 chapter food products for human consumption.
10 (b) For the purpose of this chapter, "food products"
11 means edible commodities, whether processed, cooked, raw,
12 canned, or in any other form, which are generally regarded as
13 food. This includes, but is not limited to, all of the
14 following:
15 1. Cereals and cereal products, baked goods,
16 oleomargarine, meat and meat products, fish and seafood
17 products, frozen foods and dinners, poultry, eggs and egg
18 products, vegetables and vegetable products, fruit and fruit
19 products, spices, salt, sugar and sugar products, milk and
20 dairy products, and products intended to be mixed with milk.
21 2. Natural fruit or vegetable juices or their
22 concentrates or reconstituted natural concentrated fruit or
23 vegetable juices, whether frozen or unfrozen, dehydrated,
24 powdered, granulated, sweetened or unsweetened, seasoned with
25 salt or spice, or unseasoned; coffee, coffee substitutes, or
26 cocoa; and tea, unless sold in a liquid form.
27 3. Bakery products sold by bakeries, pastry shops, or
28 like establishments which do not have eating facilities.
29 (c) None of the exemptions provided in paragraph (b)
30 applies to any of the following:
31
2
CODING: Words stricken are deletions; words underlined are additions.
Florida House of Representatives - 1997 CS/HB 315
170-838-97
1 1. When the food products are sold as meals for
2 consumption on or off the seller's premises.
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 seller or by a person with whom the seller 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 seller's premises or near a
10 location at which parking facilities are provided primarily
11 for the use of patrons in consuming the products purchased at
12 the location, even though such products are sold on a "take
13 out" or "to go" order and are actually packaged or wrapped and
14 taken from the seller's premises.
15 4. Sandwiches sold ready for immediate consumption on
16 or off the seller's 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. Soft drinks, which include, but are not limited to,
21 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 a liquid
24 form.
25 7. Ice cream, frozen yogurt, and similar frozen dairy
26 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 8. Foods or drinks cooked or prepared on the seller's
30 premises and sold ready for immediate consumption either on or
31 off the seller's premises.
3
CODING: Words stricken are deletions; words underlined are additions.
Florida House of Representatives - 1997 CS/HB 315
170-838-97
1 9. When the food products are sold through a vending
2 machine, pushcart, motor vehicle, or any other form of
3 vehicle.
4 10. Candy and any similar product regarded as candy or
5 confection, based on its normal use, as indicated on the label
6 or advertising thereof.
7 11. Bakery products sold by bakeries, pastry shops, or
8 like establishments which have eating facilities, except when
9 sold for consumption off the seller's premises.
10 12. When food products are served, prepared, or sold
11 in or by restaurants, lunch counters, cafeterias, hotels,
12 taverns, or other like places of business.
13 (d) For purposes of this subsection:
14 1. "For consumption off the seller's premises" means
15 that the food or drink is intended by the customer to be
16 consumed at a place away from the seller's premises.
17 2. "For consumption on the seller's premises" means
18 that the food or drink sold may be immediately consumed on the
19 premises where the seller conducts his or her business. In
20 determining whether an item of food is sold for immediate
21 consumption, there shall be considered the customary
22 consumption practices prevailing at the selling facility.
23 3. "Premises" shall be construed broadly, and means,
24 but is not limited to, the lobby, aisle, or auditorium of a
25 theater; the seating, aisle, or parking area of an arena,
26 rink, or stadium; or the parking area of a drive-in or outdoor
27 theater. The premises of a caterer with respect to catered
28 meals or beverages shall be the place where such meals or
29 beverages are served.
30 (a) There are exempt from the tax imposed by this
31 chapter food and drinks for human consumption except candy.
4
CODING: Words stricken are deletions; words underlined are additions.
Florida House of Representatives - 1997 CS/HB 315
170-838-97
1 Unless the exemption provided by paragraph (7)(q) for school
2 lunches, paragraph (7)(i) for meals to certain patients or
3 inmates, paragraph (7)(k) for meals provided by certain
4 nonprofit organizations, or paragraph (7)(z) for food or
5 drinks sold through vending machines pertains, none of such
6 items of food or drinks means:
7 1. Food or drinks served, prepared, or sold in or by
8 restaurants; drugstores; lunch counters; cafeterias; hotels;
9 amusement parks; racetracks; taverns; concession stands at
10 arenas, auditoriums, carnivals, fairs, stadiums, theaters, or
11 other like places of business; or by any business or place
12 required by law to be licensed by the Division of Hotels and
13 Restaurants of the Department of Business and Professional
14 Regulation, except bakery products sold in or by pastry shops,
15 doughnut shops, or like establishments for consumption off the
16 premises;
17 2. Foods and drinks sold ready for immediate
18 consumption from vending machines, pushcarts, motor vehicles,
19 or any other form of vehicle;
20 3. Soft drinks, which include, but are not limited to,
21 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. The term "soft drink" does not include:
25 natural fruit or vegetable juices or their concentrates or
26 reconstituted natural concentrated fruit or vegetable juices,
27 whether frozen or unfrozen, dehydrated, powdered, granulated,
28 sweetened or unsweetened, seasoned with salt or spice, or
29 unseasoned; coffee or coffee substitutes; tea except when sold
30 in containers as provided herein; cocoa; products intended to
31 be mixed with milk; or natural fluid milk;
5
CODING: Words stricken are deletions; words underlined are additions.
Florida House of Representatives - 1997 CS/HB 315
170-838-97
1 4. Foods or drinks cooked or prepared on the seller's
2 premises and sold ready for immediate consumption either on or
3 off the premises, excluding bakery products for off-premises
4 consumption unless such foods are taxed under subparagraph 1.
5 or subparagraph 2.; or
6 5. Sandwiches sold ready for immediate consumption.
7
8 For the purposes of this paragraph, "seller's premises" shall
9 be construed broadly, and means, but is not limited to, the
10 lobby, aisle, or auditorium of a theater; the seating, aisle,
11 or parking area of an arena, rink, or stadium; or the parking
12 area of a drive-in or outdoor theater. The premises of a
13 caterer with respect to catered meals or beverages shall be
14 the place where such meals or beverages are served.
15 (e)(b)1. Food or drinks not exempt under paragraphs
16 (a), (b), (c), and (d) paragraph (a) shall be exempt,
17 notwithstanding those paragraphs that paragraph, when
18 purchased with food coupons or Special Supplemental Food
19 Program for Women, Infants, and Children vouchers issued under
20 authority of federal law.
21 2. This paragraph is effective only while federal law
22 prohibits a state's participation in the federal food coupon
23 program or Special Supplemental Food Program for Women,
24 Infants, and Children if there is an official determination
25 that state or local sales taxes are collected within that
26 state on purchases of food or drinks with such coupons.
27 3. This paragraph shall not apply to any food or
28 drinks on which federal law shall permit sales taxes without
29 penalty, such as termination of the state's participation.
30 4. Notwithstanding any other provision of law, the
31 department shall make refunds or allow credits to a
6
CODING: Words stricken are deletions; words underlined are additions.
Florida House of Representatives - 1997 CS/HB 315
170-838-97
1 distributor equal to the fee imposed and paid under s.
2 403.7197 on containers purchased by consumers with food
3 coupons or Special Supplemental Food Program for Women,
4 Infants, and Children vouchers issued under authority of
5 federal law.
6 (7) MISCELLANEOUS EXEMPTIONS.--
7 (nn) Complimentary items.--There is exempt from the
8 tax imposed by this chapter:
9 1. Any food or drink, whether or not cooked or
10 prepared on the premises, provided without charge as a sample
11 or for the convenience of customers by a dealer that primarily
12 sells food products items at retail.
13 2. Any item given to a customer as part of a price
14 guarantee plan related to point-of-sale errors by a dealer
15 that primarily sells food products at retail.
16
17 The exemptions in this paragraph do not apply to businesses
18 with the primary activity of serving prepared meals or
19 alcoholic beverages for immediate consumption.
20 (oo) Donated foods or beverages.--Any food or beverage
21 donated by a dealer that sells food products at retail to a
22 food bank or an organization which holds current exemption
23 from federal corporate income tax pursuant to s. 501(c) of the
24 Internal Revenue Code, 1986, as amended, is exempt from the
25 tax imposed by this chapter.
26 (14)(a) The department shall establish a technical
27 assistance advisory committee with public and private sector
28 members, including representatives of both manufacturers and
29 retailers, to advise the Department of Revenue and the
30 Department of Children and Family Health and Rehabilitative
31 Services in determining the taxability of specific products
7
CODING: Words stricken are deletions; words underlined are additions.
Florida House of Representatives - 1997 CS/HB 315
170-838-97
1 and product lines pursuant to subsection (1) and paragraph
2 (2)(a). In determining taxability and in preparing a list of
3 specific products and product lines which are or are not
4 taxable, the committee shall not be subject to the provisions
5 of chapter 120. Private sector members shall not be
6 compensated for serving on the committee.
7 (b) The department, with the advice of the committee,
8 shall develop guidelines for determining the taxability of
9 specific products. The guidelines shall not be subject to the
10 provisions of chapter 120 and shall be a public record. In
11 developing the guidelines, if the department determines that a
12 proposed guideline substantially affects a particular person,
13 it shall notify the person of the development of the proposed
14 guideline. The guidelines shall be submitted to the
15 Administrative Procedures Committee and the department shall
16 respond to any comments made by the committee or to any person
17 substantially affected by the guidelines.
18 (c) The advisory committee shall use guidelines
19 determined by the department in making its recommendations.
20 The committee shall forward its recommendations to the
21 department, which shall determine the taxability of specific
22 products. The determination shall be a public record and shall
23 be final upon its publication and shall remain effective
24 unless a change of determination is published. The
25 determination may be challenged pursuant to a proceeding
26 conducted under ss. 120.569 and 120.57.
27 (d) The department is authorized to develop a central
28 database and to publish the determination as to the taxability
29 of specific products in a manner which generally provides
30 retailers with information to properly tax products based on
31 their universal product codes. To assure maximum benefit to
8
CODING: Words stricken are deletions; words underlined are additions.
Florida House of Representatives - 1997 CS/HB 315
170-838-97
1 the retail community, the committee shall help in identifying
2 the scope of information that should be included in the
3 central database and the appropriate methods to assure
4 efficient and effective communication. Information contained
5 in the central database shall not be subject to the provisions
6 of chapter 120 and shall be a public record.
7 Section 2. This act shall take effect July 1, 1997.
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
9