House Bill 0315e1

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                                 CS/CS/HB 315, First Engrossed/ntc



  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, are amended, and paragraphs (qq) and (rr)

29  are added to subsection (7) of said 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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                                 CS/CS/HB 315, First Engrossed/ntc



  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)  There are exempted from the tax imposed by this

  7  chapter food products for human consumption.

  8         (b)  For the purpose of this chapter, "food products"

  9  means edible commodities, whether processed, cooked, raw,

10  canned, or in any other form, which are generally regarded as

11  food. This includes, but is not limited to, all of the

12  following:

13         1.  Cereals and cereal products, baked goods,

14  oleomargarine, meat and meat products, fish and seafood

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

16  products, vegetables and vegetable products, fruit and fruit

17  products, spices, salt, sugar and sugar products, milk and

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

19         2.  Natural fruit or vegetable juices or their

20  concentrates or reconstituted natural concentrated fruit or

21  vegetable juices, whether frozen or unfrozen, dehydrated,

22  powdered, granulated, sweetened or unsweetened, seasoned with

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

24  cocoa; and tea, unless sold in a liquid form.

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

26  like establishments which do not have eating facilities.

27         (c)  None of the exemptions provided in paragraph (b)

28  applies to any of the following:

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

30  consumption on or off the seller's premises.

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                                 CS/CS/HB 315, First Engrossed/ntc



  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 seller or by a person with whom the seller 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 seller's premises or near a

  8  location at which parking facilities are provided primarily

  9  for the use of patrons in consuming the products purchased at

10  the location, even though such products are sold on a "take

11  out" or "to go" order and are actually packaged or wrapped and

12  taken from the seller's premises.

13         4.  Sandwiches sold ready for immediate consumption on

14  or off the seller's 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.  Soft drinks, which include, but are not limited to,

19  any nonalcoholic beverage, any preparation or beverage

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

21  drink made from milk derivatives or tea, when sold in a liquid

22  form.

23         7.  Ice cream, frozen yogurt, and similar frozen dairy

24  or nondairy products in cones, small cups, or pints,

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

26  or not sold separately.

27         8.  Food prepared, whether on or off the premises, and

28  sold for immediate consumption. This does not apply to food

29  prepared off the premises and sold in the original sealed

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

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                                 CS/CS/HB 315, First Engrossed/ntc



  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         13.  Food products sold as hot prepared food products.

14         (d)  For purposes of this subsection:

15         1.  "For consumption off the seller's premises" means

16  that the food or drink is intended by the customer to be

17  consumed at a place away from the seller's premises.

18         2.  "For consumption on the seller's premises" means

19  that the food or drink sold may be immediately consumed on the

20  premises where the seller conducts his or her business. In

21  determining whether an item of food is sold for immediate

22  consumption, there shall be considered the customary

23  consumption practices prevailing at the selling facility.

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

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

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

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

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

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

30  beverages are served.

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                                 CS/CS/HB 315, First Engrossed/ntc



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

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

  3  heated condition and which are sold at any temperature which

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

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

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

  7  food items or components where a single price has been

  8  established for the combination and the food products are sold

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

10  or 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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                                 CS/CS/HB 315, First Engrossed/ntc



  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) paragraph (a) shall be exempt,


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                                 CS/CS/HB 315, First Engrossed/ntc



  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 products 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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                                 CS/CS/HB 315, First Engrossed/ntc



  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         (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 which holds current exemption

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

  8  Internal Revenue Code, 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 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 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

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                                 CS/CS/HB 315, First Engrossed/ntc



  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 shall

  8  be final upon its publication and shall remain effective

  9  unless a change of determination is published.  The

10  determination shall not be subject to the provisions of

11  chapter 120 except that the determination may be challenged

12  pursuant to a proceeding conducted under ss. 120.569 and

13  120.57.

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

15  database and to publish the determination as to the taxability

16  of specific products in a manner which generally provides

17  retailers with information to properly tax products based on

18  their universal product codes. To assure maximum benefit to

19  the retail community, the committee shall help in identifying

20  the scope of information that should be included in the

21  central database and the appropriate methods to assure

22  efficient and effective communication. Information contained

23  in the central database shall not be subject to the provisions

24  of chapter 120 and shall be a public record.

25         Section 2.  This act shall take effect July 1 of the

26  year in which enacted.

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