Senate Bill 1338c1

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    Florida Senate - 2000                           CS for SB 1338

    By the Committee on Fiscal Resource and Senator Horne





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  1                      A bill to be entitled

  2         An act relating to communications services;

  3         creating s. 202.10, F.S.; creating ch. 202,

  4         F.S., the Communications Services Tax

  5         Simplification Law; creating s. 202.11, F.S.;

  6         providing definitions; creating s. 202.12,

  7         F.S.; imposing a tax on sales of communications

  8         services; providing for the rate of the tax;

  9         creating s. 202.125, F.S.; providing certain

10         exemptions; creating s. 202.13, F.S.; providing

11         legislative intent if the tax is declared

12         invalid, unconstitutional, or void; creating s.

13         202.14, F.S.; providing for a credit against

14         the tax; creating s. 202.15, F.S.; providing

15         special rules for users of substitute

16         communications systems; creating s. 202.16,

17         F.S.; providing for payment of the tax;

18         creating s. 202.17, F.S.; requiring dealers of

19         communications services to register with the

20         Department of Revenue; providing registration

21         requirements; providing for a fee; providing

22         circumstances under which the department may

23         revoke a dealer's certificate of registration;

24         creating s. 202.18, F.S.; providing for

25         allocation of the tax proceeds; creating s.

26         202.19, F.S.; authorizing counties and

27         municipalities to levy a discretionary

28         communications services tax; providing the rate

29         of such tax; specifying authorized uses for the

30         proceeds of the tax; creating s. 202.20, F.S.;

31         providing for establishing the initial and

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  1         maximum rates of local communications services

  2         taxes; creating s. 202.21, F.S.; providing for

  3         effective dates of such levies and notice to

  4         dealers of communications services; creating s.

  5         202.22, F.S.; providing requirements for

  6         determining local tax situs; requiring the

  7         Department of Revenue to create an electronic

  8         database for the purpose of determining local

  9         taxing jurisdiction; creating s. 202.23, F.S.;

10         providing procedures by which a purchaser may

11         request a refund or credit of the

12         communications services tax; creating s.

13         202.24, F.S.; limiting the local fees and taxes

14         that may be imposed on dealers of

15         communications services; creating s. 202.25,

16         F.S.; providing for jurisdiction for the

17         purpose of collecting taxes due; creating s.

18         202.26, F.S.; authorizing the Department of

19         Revenue to adopt rules; creating s. 202.27,

20         F.S.; providing requirements for dealers with

21         respect to filing returns and remitting taxes;

22         creating s. 202.28, F.S.; providing for a

23         credit for collecting taxes; providing

24         penalties for certain acts of tax evasion;

25         creating s. 202.29, F.S.; providing for a

26         credit against unpaid balances due under

27         certain circumstances; creating s. 202.30,

28         F.S.; providing for payment of taxes by

29         electronic transfer; creating s. 202.31, F.S.;

30         providing for tax liabilities upon the sale of

31         a business; creating s. 202.32, F.S.; providing

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  1         for local governmental agencies to cooperate in

  2         administering the law; creating s. 202.33,

  3         F.S.; providing penalties for failure to remit

  4         taxes due; creating s. 202.34, F.S.; requiring

  5         dealers of communications services to maintain

  6         certain records; providing penalties; providing

  7         for audits upon written notification by the

  8         department; creating s. 202.35, F.S.;

  9         specifying the powers of the department to

10         collect delinquent tax; creating s. 202.36,

11         F.S.; providing powers of the department with

12         respect to hearings, writs of garnishment, tax

13         warrants, and subpoenas; creating s. 202.37,

14         F.S.; providing special rules in administering

15         local communications services taxes;

16         establishing the Simplified Communications Tax

17         Advisory Council to advise the department with

18         respect to administering ch. 202, F.S., as

19         created by the act; amending s. 203.01, F.S.,

20         as amended; providing for the gross receipts

21         tax on communications services to be paid

22         pursuant to ch. 202, F.S., as created by the

23         act; deleting provisions imposing a gross

24         receipts tax on telephone and telecommunication

25         systems and services; redefining the term

26         "gross receipts" for purposes of s. 203.01;

27         amending s. 203.012, F.S., as amended; revising

28         definitions; repealing ss. 203.013, 203.60,

29         203.61, 203.62, 203.63, F.S., relating to the

30         gross receipts tax on interstate

31         telecommunication services and other taxes on

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  1         interstate and international telecommunications

  2         services imposed under part II of ch. 203,

  3         F.S.; amending s. 337.401, F.S.; providing for

  4         use of right-of-way for communications services

  5         lines; providing requirements for

  6         municipalities and counties in imposing rules,

  7         fees, taxes, and other requirements on dealers

  8         of communications services placing or

  9         maintaining communications facilities in roads

10         or rights-of-way; authorizing a municipality or

11         county to impose permit fees and inspection

12         fees; providing notice requirements for certain

13         ordinances; deleting certain limitations on

14         fees that a municipality may impose on a

15         telecommunications company; amending ss.

16         72.011, 213.05, F.S.; providing for the

17         authority of the Department of Revenue and the

18         jurisdiction of the circuit courts with respect

19         to tax matters arising under ch. 202, F.S, as

20         created by the act; amending s. 213.0535, F.S.;

21         extending the Registration Information Sharing

22         and Exchange Program to the taxes on

23         communications services; amending s. 166.231,

24         F.S., as amended, relating to the remittance of

25         taxes; conforming provisions to changes made by

26         the act; deleting provisions authorizing a

27         municipality to levy a tax on the purchase of

28         telecommunication services; amending s.

29         166.233, F.S., relating to the public service

30         tax; conforming provisions to changes made by

31         the act; amending s. 212.20, F.S.; providing

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  1         for the distribution of certain taxes collected

  2         under ch. 202, F.S., as created by the act;

  3         amending s. 125.42, F.S.; deleting provisions

  4         authorizing a board of county commissioners to

  5         grant certain licenses to construct and

  6         maintain telephone lines; amending s. 166.231,

  7         F.S.; excluding from the public service tax

  8         charges for telecommunications services which

  9         are paid for through a prepaid calling

10         arrangement; providing applicability of the

11         amendment to s. 166.231(9), F.S.; amending ss.

12         203.01, 203.012, F.S.; revising the definition

13         of the term "gross receipts" for purposes of

14         the tax on utility services; amending s.

15         212.054, F.S.; providing that the local option

16         sales tax applies to prepaid calling

17         arrangements; amending s. 212.05, F.S.;

18         requiring the payment of a sales tax on prepaid

19         calling arrangements; providing the rate of the

20         tax; providing for such sale to be a sale of

21         tangible personal property; deleting provisions

22         governing the payment of sales tax on prepaid

23         telephone calling cards; providing

24         applicability of the amendment to s. 212.05(1),

25         F.S.; amending ss. 212.05, 212.054, F.S., as

26         amended; deleting the sales tax and the

27         discretionary sales surtax imposed on telegraph

28         messages, long-distance telephone calls,

29         certain other telecommunication services, and

30         television system program services; amending s.

31         212.031, F.S.; revising certain tax exemptions

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  1         provided for the lease or rental of property

  2         used in the provision of certain communications

  3         services and applying such changes

  4         retroactively; providing applicability;

  5         providing an appropriation; providing effective

  6         dates.

  7

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

  9

10         Section 1.  Section 202.10, Florida Statutes, is

11  created to read:

12         202.10  Short title.--This chapter may be cited as the

13  "Communications Services Tax Simplification Law."

14         Section 2.  Section 202.11, Florida Statutes, is

15  created to read:

16         202.11  Definitions.--As used in this chapter, the

17  term:

18         (1)  "Actual cost of operating a substitute

19  communications system" includes, but is not limited to,

20  depreciation, interest, maintenance, repair, and other

21  expenses directly attributable to the operation of such

22  system. For purposes of this chapter, the depreciation expense

23  included in actual cost is the depreciation expense claimed

24  for federal income tax purposes. The total amount of any

25  payment required by a lease or rental contract or agreement

26  must be included within the actual cost of operating the

27  substitute communications system.

28         (2)  "Cable service" means the transmission of video,

29  audio, or other programming service to purchasers, and the

30  purchaser interaction, if any, required for the selection or

31  use of any such programming service, regardless of whether the

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  1  programming is transmitted over facilities owned or operated

  2  by the cable service provider or over facilities owned or

  3  operated by one or more other dealers of communications

  4  services. The term includes point-to-multipoint distribution

  5  services by which programming is transmitted or broadcast by

  6  microwave or other equipment directly to the purchaser's

  7  premises, but does not include direct-to-home-satellite

  8  service. The term includes, but is not limited to, basic,

  9  extended, premium, pay-per-view, digital, music, and two-way

10  cable services.

11         (3)  "Communications services" means the transmission,

12  conveyance, or routing of voice, data, audio, video, or any

13  other information or signals, including cable services, to a

14  point, or between or among points, by or through any

15  electronic, radio, satellite, cable, optical, microwave, or

16  other medium or method now in existence or hereafter devised

17  and regardless of the protocol used for such transmission or

18  conveyance. The term does not include:

19         (a)  Information services.

20         (b)  Installation or maintenance of wiring or equipment

21  on a customer's premises.

22         (c)  The sale or rental of tangible personal property.

23         (d)  The sale of advertising, including, but not

24  limited to, directory advertising.

25         (e)  Bad-check charges.

26         (f)  Late-payment charges.

27         (g)  Billing and collection services.

28         (4)  "Dealer" means a person registered with the

29  department as a provider of communications services in this

30  state.

31         (5)  "Department" means the Department of Revenue.

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  1         (6)  "Direct-to-home-satellite service" has the meaning

  2  ascribed in the Communications Act of 1934, 47 U.S.C. s.

  3  602(b)(2).

  4         (7)  "Information service" means the offering of a

  5  capability for generating, acquiring, storing, transforming,

  6  processing, retrieving, using, or making available information

  7  via communications services, including, but not limited to,

  8  electronic publishing, Web-hosting service, and end-user

  9  900-number service. The term does not include any video,

10  audio, or other programming service that uses

11  point-to-multipoint distribution by which programming is

12  delivered, transmitted, or broadcast by any means, including

13  any interaction that may be necessary for selecting and using

14  the service, regardless of whether the programming is

15  delivered, transmitted, or broadcast over facilities owned or

16  operated by the seller or another, or whether denominated as

17  cable service or as basic, extended, premium, pay-per-view,

18  digital, music, or two-way cable service.

19         (8)  "Mobile communications service" means any one-way

20  or two-way radio communications service carried between mobile

21  stations or receivers and land stations, or by mobile stations

22  communicating among themselves, and includes, but is not

23  limited to, cellular communications services, personal

24  communications services, paging services, specialized mobile

25  radio services, and any other form of mobile one-way or

26  two-way communications service.

27         (9)  "Person" has the meaning ascribed in s. 212.02.

28         (10)  "Prepaid calling arrangement" means the

29  separately stated retail sale by advance payment of

30  communications services that consist exclusively of telephone

31  calls originated by using an access number, authorization

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  1  code, or other means that may be manually, electronically, or

  2  otherwise entered, and that are sold in predetermined units or

  3  dollars of which the number declines with use in a known

  4  amount.

  5         (11)  "Purchaser" means the person paying for or

  6  obligated to pay for communications services.

  7         (12)  "Retail sale" means the sale of communications

  8  services for any purpose other than for resale or to be used

  9  as a component part of or integrated into communications

10  services to be resold in the ordinary course of business.

11  However, any sale for resale must comply with s. 202.16(2) and

12  the rules adopted thereunder.

13         (13)  "Sale" means the provision of communications

14  services for a consideration.

15         (14)  "Sales price" means the total amount charged in

16  money or other consideration by a dealer for the sale of

17  communications services in this state, including any property

18  or other services that are part of the sale.

19         (a)  The sales price of communications services may not

20  be reduced by charges for any of the following:

21         1.  Separately identified components of the charge or

22  expenses of the dealer, including, but not limited to, sales

23  taxes on goods or services purchased by the dealer, property

24  taxes, taxes measured by net income, and federal

25  universal-service fund fees;

26         2.  The connection, movement, change, or termination of

27  communications services;

28         3.  The detailed billing of communications services; or

29         4.  The sale of directory listings in connection with a

30  communications service.

31

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  1         (b)  The sales price of communications services does

  2  not include separately stated charges for any of the

  3  following:

  4         1.  Any excise tax, sales tax, or similar tax levied by

  5  the United States or any state or local government on the

  6  purchase, sale, use, or consumption of any communications

  7  service, including, but not limited to, any tax imposed under

  8  this chapter or chapter 203 which is permitted or required to

  9  be added to the sales price of such service, if the tax is

10  stated separately;

11         2.  Any fee or assessment levied by the United States

12  or any state or local government, including, but not limited

13  to, regulatory fees and emergency telephone surcharges, which

14  is required to be added to the price of such service if the

15  fee or assessment is separately stated;

16         3.  Local telephone service paid for by inserting coins

17  into coin-operated communications devices available to the

18  public;

19         4.  The sale or recharge of a prepaid calling

20  arrangement;

21         5.  The provision of air-to-ground communications

22  services, defined as a radio service provided to purchasers

23  while on board an aircraft;

24         6.  A dealer's internal use of communications services

25  in connection with its business of providing communications

26  services that are not for resale; or

27         7.  Charges for property or other services that are not

28  part of the sale of communications services, if such charges

29  are stated separately from the charges for communications

30  services.

31         (15)  "Service address" means:

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  1         (a)  In the case of cable services and

  2  direct-to-home-satellite services, the location where the

  3  customer receives the services in this state.

  4         (b)  In the case of all other communications services,

  5  the location of the communications equipment from which

  6  communications services originate or at which communications

  7  services are received by the customer. If the location of such

  8  equipment cannot be determined as part of the billing process,

  9  as in the case of mobile communications services, paging

10  systems, maritime systems, third-number and calling-card

11  calls, and similar services, the term means the location

12  determined by the dealer based on the customer's telephone

13  number, the customer's mailing address to which bills are sent

14  by the dealer, or another street address provided by the

15  customer. However, such address must be within the licensed

16  service area of the dealer. In the case of a communications

17  service paid through a credit or payment mechanism that does

18  not relate to a service address, such as a bank, travel,

19  debit, or credit card, the service address is the address of

20  the central office, as determined by the area code and the

21  first three digits of the seven-digit originating telephone

22  number.

23         (16)  "Substitute communications system" means any

24  telephone system, or other system capable of providing

25  communications services, which a person purchases, installs,

26  rents, or leases for his or her own use to provide himself or

27  herself with services used as a substitute for communications

28  services provided by a dealer of communications services.

29         (17)  "Unbundled network element" means a network

30  element, as defined in 47 U.S.C. s. 153(29), to which access

31

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  1  is provided on an unbundled basis pursuant to 47 U.S.C. s.

  2  251(c)(3).

  3         Section 3.  Effective January 1, 2002, section 202.12,

  4  Florida Statutes, is created to read:

  5         202.12  Sales of communications services.--The

  6  Legislature finds that every person who engages in the

  7  business of selling communications services at retail in this

  8  state is exercising a taxable privilege. It is the intent of

  9  the Legislature that the tax imposed by chapter 203 be

10  administered as provided in this chapter.

11         (1)  For the exercise of such privilege, a tax is

12  levied on each taxable transaction, and the tax is due and

13  payable as follows:

14         (a)  At the rate of 6.33 percent of the sales price of

15  the communication service, except for direct-to-home-satellite

16  service, which:

17         1.  Originates and terminates in this state; or

18         2.  Originates or terminates in this state and is

19  charged to a service address in this state,

20

21  when sold at retail and computed on each taxable sale for the

22  purpose of remitting the tax due. The gross receipts tax

23  imposed by chapter 203 shall be collected on the same taxable

24  transactions and remitted with the tax imposed by this

25  paragraph.

26         (b)  At the rate set forth in paragraph (a) on the

27  actual cost of operating a substitute communications system,

28  to be paid in accordance with s. 202.15. This paragraph does

29  not apply to the use by any dealer of its own communications

30  system to conduct a business of providing communications

31  services or any communications system operated by a county, a

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  1  municipality, the state, or any political subdivision of the

  2  state. The gross receipts tax imposed by chapter 203 shall be

  3  applied to the same costs, and remitted with the tax imposed

  4  by this paragraph.

  5         (c)  At a rate to be determined by the Revenue

  6  Estimating Conference on the sales price of any

  7  direct-to-home-satellite service received in this state. The

  8  proceeds of the tax imposed under this paragraph shall be

  9  accounted for and distributed in accordance with s. 202.18(2).

10  The gross recepts tax imposed by chapter 203 shall be

11  collected on the same taxable transactions, and remitted with

12  the tax imposed by this paragraph.

13         (2)  A dealer of taxable communications services shall

14  bill, collect, and remit the taxes on communications services

15  imposed pursuant to chapter 203 and this section at a combined

16  rate that is the sum of the rate of tax on communications

17  services prescribed in chapter 203 and the applicable rate of

18  tax prescribed in this section. Each dealer subject to the tax

19  provided in paragraph (1)(b) shall also remit the taxes

20  imposed pursuant to chapter 203 and this section on a combined

21  basis.

22         (3)  Notwithstanding any law to the contrary, the tax

23  imposed under this section may not exceed $100,000 per

24  calendar year on charges to any person for interstate

25  communications services that originate outside this state and

26  terminate within this state. This paragraph applies only to

27  holders of a direct-pay permit issued under this paragraph. A

28  refund may not be given for taxes paid before receiving a

29  direct-pay permit. Upon application, the department may issue

30  a direct-pay permit to the purchaser of communications

31  services authorizing such purchaser to pay tax on such

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  1  services directly to the department. Any dealer of

  2  communications services furnishing communications services to

  3  the holder of a valid direct-pay permit is relieved of the

  4  obligation to collect and remit the tax on such service. Tax

  5  payments and returns pursuant to a direct-pay permit shall be

  6  monthly. As used in this paragraph, the term "person" means a

  7  single legal entity and does not mean a group or combination

  8  of affiliated entities or entities controlled by one person or

  9  group of persons.

10         Section 4.  Effective January 1, 2002, section 202.125,

11  Florida Statutes, is created to read:

12         202.125  Sales of communications services; specified

13  exemptions.--

14         (1)  The separately stated sales price of certain

15  communications services sold to residential households is

16  exempt from the tax imposed or administered pursuant to s.

17  202.12. This exemption applies only to the price of local

18  telephone service and toll telephone service. This exemption

19  does not apply to any residence that constitutes all or part

20  of a public lodging establishment as defined in chapter 509 or

21  to any mobile communications service.

22         (2)  The sale of communications services provided to

23  the Federal Government, any agency or instrumentality of the

24  Federal Government, or any entity that is exempt from state

25  taxes under federal law is exempt from the taxes imposed or

26  administered pursuant to ss. 202.12 and 202.19.

27         (3)  The sale of communications services to the state

28  or any county, municipality, or political subdivision of the

29  state when payment is made directly to the dealer by the

30  governmental entity is exempt from the taxes imposed or

31  administered pursuant to ss. 202.12 and 202.19. This exemption

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  1  does not inure to any transaction otherwise taxable under this

  2  chapter when payment is made by a government employee by any

  3  means, including, but not limited to, cash, check, or credit

  4  card when that employee is subsequently reimbursed by the

  5  governmental entity.

  6         (4)  The sale of communications services to a religious

  7  or educational organization that is exempt from federal income

  8  tax under s. 501(c)(3) of the Internal Revenue Code is exempt

  9  from the taxes imposed or administered pursuant to ss. 202.12

10  and 202.19.

11         Section 5.  Effective January 1, 2002, section 202.13,

12  Florida Statutes, is created to read:

13         202.13  Intent.--

14         (1)  If the operation or imposition of the taxes

15  imposed or administered under this chapter are declared

16  invalid, ineffective, inapplicable, unconstitutional, or void

17  for any reason, chapters 166, 203, 212, and 337, as such

18  chapters existed before January 1, 2002, shall fully apply to

19  the sale, use, or consumption of communications services. If

20  any exemption from the tax is declared invalid, ineffective,

21  inapplicable, unconstitutional, or void for any reason, such

22  declaration shall not affect the taxes imposed under this

23  chapter, but such sale, use, or consumption shall be subject

24  to the taxes imposed under this section to the same extent as

25  if such exemption never existed.

26         (2)  It is the intent of the Legislature to exempt from

27  the taxes imposed or administered pursuant to this chapter

28  only the communications services set forth in this chapter as

29  exempt from such taxes, to the extent that such exemptions are

30  in accordance with the constitutions of this state and of the

31  United States.

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  1         Section 6.  Effective January 1, 2002, section 202.14,

  2  Florida Statutes, is created to read:

  3         202.14  Credit against tax imposed.--To prevent actual

  4  multistate taxation of communications services subject to tax

  5  under this chapter, any taxpayer, upon proof that such

  6  taxpayer has paid a tax legally imposed by another state or

  7  local jurisdiction in such other state with respect to such

  8  services, shall be allowed a credit against the taxes imposed

  9  under this chapter to the extent of the amount of tax paid in

10  the other state or local jurisdiction.

11         Section 7.  Effective January 1, 2002, section 202.15,

12  Florida Statutes, is created to read:

13         202.15  Special rule for users of substitute

14  communications systems.--Any person who purchases, installs,

15  rents, or leases a substitute communications system must

16  register with the department and pay the tax imposed or

17  administered by s. 202.12 annually pursuant to rules

18  prescribed by the department.

19         Section 8.  Effective January 1, 2002, section 202.16,

20  Florida Statutes, is created to read:

21         202.16  Payment.--The taxes imposed or administered

22  under this chapter and chapter 203 shall be collected from all

23  dealers of taxable communications services on the sale at

24  retail in this state of communications services taxable under

25  this chapter and chapter 203. The full amount of the taxes on

26  a credit sale, installment sale, or sale made on any kind of

27  deferred payment plan is due at the moment of the transaction

28  in the same manner as a cash sale.

29         (1)(a)  Except as otherwise provided in ss.

30  202.12(1)(b) and 202.15, the taxes collected under this

31  chapter and chapter 203, including any penalties or interest

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  1  attributable to the nonpayment of such taxes or for

  2  noncompliance with this chapter or chapter 203, shall be paid

  3  by the purchaser of the communications service and shall be

  4  collected from such person by the dealer of communications

  5  services.

  6         (b)  Each dealer of communications services selling

  7  communications services in this state shall collect the taxes

  8  imposed under this chapter and chapter 203 from the purchaser

  9  of such services, and such taxes must be stated separately

10  from all other charges on the bill or invoice.

11         (2)  A sale of communications services that are used as

12  a component part of or integrated into a communications

13  service or prepaid calling arrangement for resale, including,

14  but not limited to, carrier-access charges, interconnection

15  charges paid by providers of mobile communication services or

16  other communication services, charges paid by cable service

17  providers for the transmission of video or other programming

18  by another dealer of communications services, charges for the

19  sale of unbundled network elements, and any other intercompany

20  charges for the use of facilities for providing communications

21  services for resale, must be made in compliance with the rules

22  of the department. Any person who makes a sale for resale

23  which is not in compliance with these rules is liable for any

24  tax, penalty, and interest due for failing to comply, to be

25  calculated pursuant to s. 202.28(2)(a).

26         (3)  Notwithstanding the rate of tax on the sale of

27  communications services imposed pursuant to this chapter and

28  chapter 203, the department shall prescribe by rule the tax

29  amounts and brackets applicable to each taxable sale such that

30  the tax collected results in a tax rate no less than the tax

31  rate imposed pursuant to this chapter and chapter 203.

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  1         (4)  Each purchaser of a communications service is

  2  liable for the taxes imposed under this chapter and chapter

  3  203. The purchaser's liability is not extinguished until the

  4  tax has been paid to the department, except that proof of

  5  payment of the tax to a dealer of communications services

  6  engaged in business in this state is sufficient to relieve the

  7  purchaser from further liability for the tax.

  8         Section 9.  Effective January 1, 2002, section 202.17,

  9  Florida Statutes, is created to read:

10         202.17  Registration.--

11         (1)  Each person seeking to engage in business as a

12  dealer of communications services must file with the

13  department an application for a certificate of registration.

14         (2)  A person may not engage in the business of

15  providing communications services without first obtaining a

16  certificate of registration. The failure or refusal to submit

17  an application by any person required to register, as required

18  by this section, is a misdemeanor of the first degree,

19  punishable as provided in s. 775.082 or s. 775.083. Any person

20  who fails or refuses to register shall pay an initial

21  registration fee of $100 in lieu of the $5 registration fee

22  prescribed under paragraphs (3)(a) and (4)(a). However, this

23  fee increase may be waived by the department if the failure is

24  due to reasonable cause.

25         (3)(a)  An application for a certificate of

26  registration must be completed by the dealer of communications

27  services before engaging in business. The application for a

28  certificate of registration must contain the information

29  required by rule of the department.

30

31

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  1         (b)  The department, upon receipt of a completed

  2  application, shall grant to the applicant a certificate of

  3  registration.

  4         (4)(a)  Any person who exclusively resells

  5  communications services to a dealer of communications services

  6  must submit an application for registration before engaging in

  7  business in this state.

  8         (b)  The department, upon receipt of a completed

  9  application, shall grant to the applicant a certificate of

10  registration which states that the applicant is a reseller of

11  communications services.

12         (5)  Each application required by paragraph (3)(a) or

13  paragraph (4)(a) must be accompanied by a registration fee of

14  $5, to be deposited in the General Revenue Fund, and must set

15  forth:

16         (a)  The name under which the person will transact

17  business within this state.

18         (b)  The street address of his or her principal office

19  or place of business within this state and of the location

20  where records are available for inspection.

21         (c)  The name and complete residence address of the

22  owner or the names and residence addresses of the partners, if

23  the applicant is a partnership, or of the principal officers,

24  if the applicant is a corporation or association. If the

25  applicant is a corporation organized under the laws of another

26  state, territory, or country, he or she must also file with

27  the application a certified copy of the certificate or license

28  issued by the Department of State showing that the corporation

29  is authorized to transact business in this state.

30         (d)  Any other data required by the department.

31

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  1         (6)  Certificates of registration issued by the

  2  department are not assignable.

  3         (7)  In addition to the certificate of registration,

  4  the department shall provide to each newly registered dealer

  5  an annual resale certificate that is valid for the remaining

  6  portion of the year. The department shall provide to each

  7  active dealer an annual resale certificate. As used in this

  8  section, the term "active dealer" means a person who is

  9  registered with the department and who is required to file at

10  least once during each applicable reporting period.

11         (8)  A certificate of registration issued by the

12  department may be revoked by the department or its designated

13  agent when a dealer fails to comply with this chapter or

14  chapter 203. Before revoking a dealer's certificate of

15  registration, the department must schedule an informal

16  conference at which the dealer may present evidence regarding

17  the department's intended revocation or enter into a

18  compliance agreement with the department. The department must

19  notify the dealer of its intended action and of the time,

20  place, and date of the scheduled informal conference by

21  written notification sent by United States mail to the

22  dealer's last-known address of record furnished by the dealer

23  on a form prescribed by the department. The dealer must attend

24  the informal conference and present evidence refuting the

25  department's intended revocation or enter into a compliance

26  agreement with the department which resolves the dealer's

27  failure to comply with this chapter or chapter 203. The

28  department shall issue an administrative complaint under s.

29  120.60 if the dealer fails to attend the department's informal

30  conference, fails to enter into a compliance agreement with

31  the department resolving the dealer's noncompliance with this

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  1  chapter, or fails to comply with the executed compliance

  2  agreement.

  3         Section 10.  Effective January 1, 2002, section 202.18,

  4  Florida Statutes, is created to read:

  5         202.18  Allocation and disposition of tax

  6  proceeds.--The proceeds of the communications services taxes

  7  remitted under this chapter shall be treated as follows:

  8         (1)  The proceeds of the taxes remitted under s.

  9  202.12(1)(a) and (b) shall be divided as follows:

10         (a)  The portion of such proceeds which constitutes

11  gross receipts taxes, imposed at the rate prescribed in

12  chapter 203, shall be deposited as provided by law and in

13  accordance with s. 9 of Art. XII of the State Constitution.

14         (b)  The remaining portion shall be distributed

15  according to s. 212.20(6).

16         (2)  The proceeds of the taxes remitted under s.

17  202.12(1)(c) shall be divided as follows:

18         (a)  The portion of such proceeds which constitutes

19  gross receipts taxes, imposed at the rate prescribed in

20  chapter 203, shall be deposited as provided by law and in

21  accordance with s. 9 of Art. XII of the State Constitution.

22         (b)  An additional      percent of such proceeds shall

23  be allocated to the state and distributed pursuant to s.

24  212.20(6).

25         (c)  The remaining portion of the tax collected under

26  this subsection shall be allocated to the municipalities and

27  counties in proportion to the allocation of receipts from the

28  half-cent sales tax under s. 318.61 and the emergency

29  distribution of such tax under s. 218.65. The department shall

30  distribute the appropriate amount to each municipality and

31

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  1  county each month at the same time that local communications

  2  services taxes are distributed pursuant to subsection (3).

  3         (3)(a)  Notwithstanding any law to the contrary, the

  4  proceeds of each local communications services tax levied by a

  5  municipality or county pursuant to s. 202.19, less the

  6  department's costs of administration, shall be transferred to

  7  the Local Communications Services Clearing Tax Trust Fund and

  8  held there to be distributed to such municipality or county.

  9  However, the proceeds of any communications services tax

10  imposed pursuant to s. 202.19(5) shall be deposited and

11  disbursed in accordance with ss. 212.054 and 212.055. For

12  purposes of this section, the proceeds of any tax levied by a

13  municipality, county, or school board under s. 202.19 are all

14  funds collected and received by the department pursuant to a

15  specific levy authorized by such section, including any

16  interest and penalties attributable to the tax levy.

17         (b)  The amount deducted for the costs of

18  administration may not exceed     percent of the total revenue

19  generated for all municipalities, counties, and school boards

20  levying a tax pursuant to s. 202.19. The amount deducted for

21  the costs of administration shall be used only for those costs

22  that are attributable to the taxes imposed pursuant to s.

23  202.19. The total cost of administration shall be prorated

24  among those jurisdictions levying the tax on the basis of the

25  amount collected for a particular jurisdiction to the total

26  amount collected for all such jurisdictions.

27         (c)1.  Except as otherwise provided in this paragraph,

28  proceeds of the taxes levied pursuant to s. 202.19, less

29  amounts deducted for costs of administration in accordance

30  with paragraph (b), shall be distributed monthly to the

31  appropriate jurisdictions. The proceeds of taxes imposed

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  1  pursuant to s. 202.19(5) shall be distributed in the same

  2  manner as discretionary surtaxes are distributed, in

  3  accordance with ss. 212.054 and 212.055.

  4         2.  The department shall make any adjustments to the

  5  distributions pursuant to this paragraph which are necessary

  6  to reflect the proper amounts due to individual jurisdictions.

  7         Section 11.  Effective January 1, 2002, section 202.19,

  8  Florida Statutes, is created to read:

  9         202.19  Authorization to impose local communications

10  services tax.--

11         (1)  The governing authority of each county and

12  municipality may, by ordinance, levy a discretionary

13  communications services tax.

14         (2)  The rate of such tax shall be as follows:

15         (a)  For municipalities and charter counties, the rate

16  shall be up to the maximum rate determined for municipalities

17  and charter counties in accordance with s. 202.20(2).

18         (b)  For all other counties, the rate shall be up to

19  the maximum rate determined for other counties in accordance

20  with s. 202.20(2).

21

22  The rate imposed by any municipality or county shall be

23  expressed in increments of one-tenth of a percent and rounded

24  up to the nearest one-tenth percent.

25         (3)(a)  The maximum rates established under subsection

26  (2) reflect the rates for communications services taxes

27  imposed under this chapter which are necessary for each

28  municipality or county to raise the maximum amount of revenues

29  which it was authorized to raise prior to July 1, 2000,

30  through the imposition of taxes, charges, and fees, but that

31

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  1  it is prohibited from imposing under s. 202.24, other than the

  2  discretionary surtax authorized under s. 212.055.

  3         (b)  The tax authorized under this section includes any

  4  fee or other consideration to which the municipality or county

  5  is otherwise entitled for granting permission to dealers of

  6  communications services or providers of cable television

  7  services, as authorized in 47 U.S.C. s. 542, to use or occupy

  8  its roads or rights-of-way for the placement, construction,

  9  and maintenance of poles, wires, and other fixtures used in

10  the provision of communications services.

11         (c)  This subsection does not supersede or impair the

12  right, if any, of a municipality or county to require the

13  payment of consideration by persons using or occupying its

14  roads or rights-of-way in a capacity other than that of a

15  dealer of communications services or to require the payment of

16  regulatory fees or assessments pursuant to s. 337.401.

17         (4)(a)  Except as otherwise provided in this section,

18  the tax imposed by any municipality shall be on all

19  communications services subject to tax under s. 202.12 which:

20         1.  Originate or terminate in this state; and

21         2.  Are charged to a service address in the

22  municipality.

23         (b)  The tax imposed by any county under subsection (1)

24  shall be on all communications services subject to tax under

25  s. 202.12 which:

26         1.  Originate or terminate in this state; and

27         2.  Are charged to a service address in the

28  unincorporated area of the county.

29         (5)(a)  In addition to the communications services

30  taxes authorized by subsection (1), a discretionary surtax

31  that a county or school board has levied under s. 212.055 is

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  1  imposed as a local communications services tax under this

  2  section, except that the rate shall be determined in

  3  accordance with s. 202.20. Each such tax rate shall be

  4  applied, in addition to the other tax rates applied under this

  5  chapter, to communications services subject to tax under s.

  6  202.12 which:

  7         1.  Originate or terminate in this state; and

  8         2.  Are charged to a service address in the county.

  9         (b)  The maximum rate established under paragraph (a)

10  reflects the rate for communications services tax imposed

11  under paragraph (a) which is necessary for the county to raise

12  the maximum amount of revenues which it was authorized to

13  raise prior to July 1, 2000, through the imposition of the

14  discretionary surtax on telecommunications services authorized

15  under s. 212.055.

16         (6)  Notwithstanding any other provision of this

17  section, a tax imposed under this section does not apply to

18  any direct-to-home-satellite service.

19         (7)  Any tax imposed by a municipality or county under

20  this section also applies to the actual cost of operating a

21  substitute communications system, to be paid in accordance

22  with s. 202.15. This paragraph does not apply to the use by

23  any provider of its own communications system to conduct a

24  business of providing communications services or to the use of

25  any communication system operated by a county, a municipality,

26  the state, or any political subdivision of the state.

27         (8)  Notwithstanding any law to the contrary, a tax

28  imposed under this section may not exceed $100,000 per

29  calendar year on charges to any person for interstate

30  communications services that originate outside this state and

31  terminate within this state. This subsection applies only to

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  1  holders of a direct-pay permit issued under this paragraph. A

  2  refund may not be given for taxes paid before receiving a

  3  direct-pay permit. Upon application, the department may issue

  4  a direct-pay permit to the purchaser of communications

  5  services authorizing such purchaser to pay tax on such

  6  services directly to the department. Any dealer of

  7  communications services furnishing communications services to

  8  the holder of a valid direct-pay permit is relieved of the

  9  obligation to collect and remit the tax on such service. Tax

10  payments and returns pursuant to a direct-pay permit shall be

11  monthly. As used in this paragraph, the term "person" means a

12  single legal entity and does not mean a group or combination

13  of affiliated entities or entities controlled by one person or

14  group of persons.

15         (9)  A municipality or county that imposes a tax under

16  this section may use the revenues raised by such tax for any

17  public purpose, including, but not limited to, pledging such

18  revenues for the repayment of current or future bonded

19  indebtedness.

20         Section 12.  Section 202.20, Florida Statutes, is

21  created to read:

22         202.20  Establishment of initial and maximum rates of

23  local communications services taxes.--The initial rates and

24  maximum rates for the local communications services taxes

25  imposed under this chapter shall be determined in accordance

26  with this section.

27         (1)(a)  On or before December 31, 2000, the Revenue

28  Estimating Conference shall compute for each municipality and

29  county the rate of local communications services tax which

30  would be required to be levied in order for such local taxing

31

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  1  jurisdiction to raise, through the imposition of a local

  2  communications services tax, revenues equal to the sum of:

  3         1.  The amount of revenues that were actually received

  4  from the replaced revenue sources in the fiscal year ending

  5  September 30, 2000;

  6         2.  An amount representing the reasonably anticipated

  7  growth in such revenues over a period of 1 year, based on the

  8  average growth of such revenues over the 5-year period

  9  immediately preceding 1999; and

10         3.  An amount representing the revenues from the

11  replaced revenue sources for the 1-month period which local

12  taxing jurisdictions will be required to forego as a result of

13  the repeal of the public service tax.

14         (b)  For each county or school board that levies the

15  discretionary surtax authorized in s. 212.055, the Revenue

16  Estimating Conference shall, in accordance with this

17  subsection, compute a rate for the tax authorized in s.

18  202.19(1) and a separate rate for each discretionary surtax.

19         (c)  The rates computed by the Revenue Estimating

20  Conference shall be presented to the Legislature for review

21  and approval during the 2001 regular session. The rates

22  approved by the Legislature under this section shall be

23  effective in the respective local taxing jurisdictions on

24  January 1, 2002, without any action being taken by the

25  governing authority or voters of such local taxing

26  jurisdictions.

27         (d)  With respect to any local taxing jurisdiction, if,

28  for the calendar quarter ending December 31, 2002, the

29  revenues raised by a local communications services tax imposed

30  under this section are less than the revenues raised by the

31  jurisdiction for the calendar quarter ending December 31,

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  1  2001, from the replaced revenue sources, the governing

  2  authority of the jurisdiction may adjust the rate of the local

  3  communications services tax upward to the extent necessary to

  4  generate such difference in revenues. The adjustment must be

  5  made by emergency ordinance and is authorized notwithstanding

  6  the maximum rate established under subsection (2).

  7         (2)(a)  On or before December 31, 2001, the Revenue

  8  Estimating Conference shall compute, in accordance with this

  9  paragraph, the maximum rates at which local taxing

10  jurisdictions shall be permitted to impose local

11  communications services taxes.

12         1.  For the taxes authorized under s. 202.19(1), a

13  single maximum rate shall apply to all municipalities and

14  charter counties and another single maximum rate shall apply

15  to all other counties.

16         2.  Each respective maximum rate shall reflect the

17  greatest possible amount of revenues which could have been

18  generated from the replaced revenue sources, assuming that

19  each local taxing jurisdiction had imposed every replaced

20  revenue source in the manner and at the rate that would have

21  produced the greatest amount of revenues.

22         (b)  The rates computed by the Revenue Estimating

23  Conference shall be presented to the Legislature for review

24  and approval during the 2001 regular session. The rates

25  approved by the Legislature pursuant to this subsection shall

26  be the maximum rates for purposes of s. 202.19.

27         (3)  Each dealer of communications services shall

28  furnish to the Revenue Estimating Conference the information

29  necessary for the Revenue Estimating Conference to make the

30  computations required by subsections (1) and (2). All

31  information furnished to the Revenue Estimating Conference

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  1  under this subsection shall be available to all local taxing

  2  jurisdictions.

  3         (4)  As used in this section, the term "replaced

  4  revenue sources" means the following taxes, charges, fees, or

  5  other impositions that the respective local taxing

  6  jurisdictions were authorized to impose prior to January 1,

  7  2002.

  8         (a)  With respect to municipalities and charter

  9  counties and the taxes authorized in s. 202.19(1):

10         1.  The public service tax on telecommunications

11  authorized by s. 166.231(9);

12         2.  Franchise fees on cable service providers as

13  authorized by 47 U.S.C. s. 542;

14         3.  The public service tax on prepaid calling

15  arrangements;

16         4.  Franchise fees on dealers of communications

17  services which use the public roads or rights-of-way, up to

18  the limit set forth in s. 337.401; and

19         5.  Permit fees on long-distance telephone service

20  providers, as provided in s. 203.012(7), and cable service

21  providers.

22         (b)  With respect to all other counties and the taxes

23  authorized in s. 202.19(1) franchise fees on cable service

24  providers as authorized by 47 U.S.C. s. 542.

25         (c)  With respect to all counties and the taxes imposed

26  under s. 202.19(5), the term "replaced revenue sources" means

27  the discretionary surtax levied on telecommunications services

28  under s. 212.055.

29         Section 13.  Effective January 1, 2002, section 202.21,

30  Florida Statutes, is created to read:

31

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  1         202.21  Effective dates; procedures for informing

  2  dealers of communications services of tax levies and rate

  3  changes.--Any adoption, repeal, or change in the rate of a

  4  local communications services tax imposed under s. 202.19 is

  5  effective with respect to taxable services included on bills

  6  that are dated on or after the January 1 subsequent to such

  7  adoption, repeal, or change. A municipality or county

  8  adopting, repealing, or changing the rate of such tax must

  9  notify the department of the adoption, repeal, or change by

10  September 1 immediately preceding such January 1. Notification

11  must be furnished on a form prescribed by the department and

12  must specify the rate of tax; the effective date of the

13  adoption, repeal, or change thereof; and the name, mailing

14  address, and telephone number of a person designated by the

15  municipality or county to respond to inquiries concerning the

16  tax. The department shall provide notice of such adoption,

17  repeal, or change to all affected dealers of communications

18  services at least 90 days before the effective date of the

19  tax. The department is not liable for any loss of or decrease

20  in revenue by reason of any error, omission, or untimely

21  action that results in the nonpayment of a tax imposed under

22  s. 202.19.

23         Section 14.  Effective January 1, 2002, section 202.22,

24  Florida Statutes, is created to read:

25         202.22  Determination of local tax situs.--

26         (1)  A dealer of communications services who is

27  obligated to collect and remit a local communications services

28  tax imposed under s. 202.19 shall be held harmless from any

29  liability, including tax, interest, and penalties, which would

30  otherwise be due solely as a result of an assignment of a

31  service address to an incorrect local taxing jurisdiction, if

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  1  the dealer of communications services exercises due diligence

  2  in applying one or more of the following methods for

  3  determining the local taxing jurisdiction in which a service

  4  address is located:

  5         (a)  Employing an electronic database provided by the

  6  department under subsection (2);

  7         (b)  Employing a database developed by the dealer or

  8  supplied by a vendor which has been certified by the

  9  department under subsection (3); or

10         (c)  Employing an enhanced zip code to assign each

11  street address, address range, or post office box in the state

12  to a specific local taxing jurisdiction, and exercises due

13  diligence to ensure that each such street address, address

14  range, post office box, or post office box range is assigned

15  to the correct local taxing jurisdiction. If an enhanced zip

16  code overlaps boundaries of municipalities or counties, or if

17  an enhanced zip code cannot be assigned to the service address

18  because it is a rural area or a location without postal

19  delivery, the dealer of communications services must designate

20  one specific local taxing jurisdiction within such enhanced

21  zip code based on a reasonable methodology. A methodology

22  satisfies this paragraph if:

23         1.  The information used to identify the proper local

24  taxing jurisdictions is obtained from:

25         a.  A database certified by the department under

26  subsection (3);

27         b.  Responsible representatives of the relevant local

28  taxing jurisdictions; or

29         c.  The United States Census Bureau or the United

30  States Postal Service; and

31

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  1         2.  The methodology is applied timely and consistently

  2  so as to correct inaccurate assignments within 120 days after

  3  discovery.

  4         (2)(a)  The department shall, subject to legislative

  5  appropriation, create as soon as practical and feasible, and

  6  thereafter maintain, an electronic database that gives due and

  7  proper regard to any format that is approved by the American

  8  National Standards Institute's Accredited Standards Committee

  9  X12 and that designates for each street address, address

10  range, post office box, or post office box range in the state,

11  including any multiple postal street addresses applicable to

12  one street location, the local taxing jurisdiction in which

13  the street address, address range, post office box, or post

14  office box range is located and the appropriate code for each

15  such local taxing jurisdiction, identified by one nationwide

16  standard numeric code. The nationwide standard numeric code

17  must contain the same number of numeric digits, and each

18  digit, or combination of digits, must refer to the same level

19  of taxing jurisdiction throughout the United States using a

20  format similar to FIPS 55-3 or other appropriate standard

21  approved by the Federation of Tax Administrators and the

22  Multistate Tax Commission. Each address or address range or

23  post office box or post office box range must be provided in

24  standard postal format, including the street number, street

25  number range, street name, post office box number, post office

26  box range, and zip code. The department shall provide notice

27  of the availability of the database, and any subsequent

28  revision thereof, by publication in the Florida Administrative

29  Weekly.

30         (b)1.  Each local taxing jurisdiction shall furnish to

31  the department all information needed to create and update the

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  1  electronic database, including changes in service addresses,

  2  annexations, incorporations, reorganizations, and any other

  3  changes in jurisdictional boundaries. The information

  4  furnished to the department must specify an effective date,

  5  which must be the next ensuing January 1 or July 1, and such

  6  information must be furnished to the department at least 120

  7  days prior to the effective date.

  8         2.  The department shall update the electronic database

  9  in accordance with the information furnished by local taxing

10  jurisdictions under subparagraph 1. Each update must specify

11  the effective date as the next ensuing January 1 or July 1 and

12  must be posted by the department on a Web site not less than

13  90 days prior to the effective date. The department shall also

14  furnish the update on magnetic or electronic media to any

15  dealer of communications services or vendor who requests the

16  update on such media. However, the department may collect a

17  fee from the dealer of communications services which does not

18  exceed the actual cost of furnishing the update on magnetic or

19  electronic media.

20         3.  Each update must identify the additions, deletions,

21  and other changes to the preceding version of the database.

22  Each dealer of communications services shall collect and remit

23  local communications services taxes imposed under this chapter

24  only for those service addresses that are contained in the

25  database and for which all of the elements required by this

26  subsection are included in the database.

27         (3)  For purposes of this section, a database must be

28  certified by the department pursuant to rules adopted in

29  accordance with the following criteria:

30         (a)  The database must assign street addresses, address

31  ranges, post office boxes, or post office box ranges to the

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  1  proper jurisdiction with an overall accuracy rate of 95

  2  percent at the 95th percent level of confidence, as determined

  3  through a statistically reliable sample. The accuracy must be

  4  measured based on the entire state or, if the service area of

  5  the respective dealer of communications services does not

  6  encompass the entire state, based on the dealer's entire

  7  service area.

  8         (b)  Upon receipt of an application for certification

  9  of a database, the department shall examine the application

10  and, within 90 days after receipt, notify the applicant of any

11  apparent errors or omissions and request any additional

12  information, conduct any inspection, or perform any testing

13  determined necessary. The applicant shall designate an

14  individual responsible for providing access to all records,

15  facilities, and processes the department determines are

16  reasonably necessary to review and make a determination

17  regarding the application. Such access must be provided

18  promptly, consistent with the time requirements contained in

19  this paragraph, but at least within 10 working days after

20  notification. Each application for certificate must be

21  approved or denied upon written notice within 120 days after

22  the receipt of a completed application. The notice must

23  specify the grounds for a denial, inform the applicant of any

24  remedy that is available, and indicate the procedure that must

25  be followed. Certification of a database is valid for 3 or 4

26  years, as determined by the department.

27         (c)  The application must be in the form prescribed by

28  rule and must include the applicant's name, federal employment

29  identification number, mailing address, business address, and

30  any other information required by the department. The

31  application must identify, among other elements required by

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  1  the department, the applicant's proposal for testing the

  2  database.

  3         (d)  An application for recertification of a database

  4  must be received by the department not more than 3 years after

  5  the date of any prior certification. The application must

  6  comply with this section. The department shall complete its

  7  review of the application for certification within 180 days

  8  following receipt.

  9         (4)(a)  As used in this section, the term "due

10  diligence" means the care and attention that is expected from,

11  and ordinarily exercised by, a reasonable and prudent person

12  under the circumstances.

13         (b)  Notwithstanding any law to the contrary, a dealer

14  of communications services is exercising due diligence in

15  applying one or more of the methods set forth in subsection

16  (1) if the dealer:

17         1.  Expends reasonable resources to accurately and

18  reliably implement such method. However, the employment of

19  enhanced zip codes pursuant to paragraph (1)(c) satisfies the

20  requirements of this subparagraph; and

21         2.  Maintains adequate internal controls in assigning

22  street addresses, address ranges, or post offices boxes to

23  taxing jurisdictions. Internal controls are adequate if the

24  dealer of communications services:

25         a.  Maintains and follows procedures to obtain and

26  implement periodic and consistent updates to the database; and

27         b.  Corrects all exceptions, including inaccurate

28  addresses, incorrect assignments of addresses or taxing

29  jurisdictions, or other errors or omissions of taxing

30  jurisdictions associated with certain addresses, within 120

31  days after discovery.

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  1         (5)  If a dealer of communications services does not

  2  use one or more of the methods specified in subsection (1) for

  3  determining the local taxing jurisdiction in which a service

  4  address is located, the dealer of communications services may

  5  be held liable to the department for any tax, including

  6  interest and penalties, which is due as a result of assigning

  7  the service address to an incorrect local taxing jurisdiction.

  8  However, the dealer of communications services is not liable

  9  for any tax, interest, or penalty to the extent that such

10  amount was collected and remitted by the dealer of

11  communications services with respect to a tax imposed by

12  another local taxing jurisdiction. Dealers of communications

13  services and local taxing jurisdictions shall be required to

14  report to the department discovery of any taxes that were not

15  correctly collected and remitted. Upon determining that an

16  amount was collected and remitted by a dealer of

17  communications services with respect to a tax imposed by

18  another local taxing jurisdiction, the department shall adjust

19  the respective amounts of the proceeds paid to each such

20  taxing jurisdiction under s. 202.20 in the month immediately

21  following such determination.

22         (6)(a)  Pursuant to rules adopted by the department,

23  each dealer of communications services must notify the

24  department of the methods it intends to employ for determining

25  the local taxing jurisdiction in which service addresses are

26  located.

27         (b)  Notwithstanding s. 202.28, if a dealer of

28  communications services employs a database that has not been

29  certified by the department pursuant to subsection (3), the

30  deduction allowed to the dealer of communications services as

31

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  1  compensation under s. 202.28 shall be 0.25 percent of the tax

  2  due and accounted for and remitted to the department.

  3         (7)  As used in this section, the term "enhanced zip

  4  code" means a United States postal zip code of 9 or more

  5  digits.

  6         Section 15.  Effective January 1, 2002, section 202.23,

  7  Florida Statutes, is created to read:

  8         202.23  Procedure on purchaser's request for refund or

  9  credit of communications services taxes.--

10         (1)  Notwithstanding any other law, a purchaser seeking

11  a refund of or credit for a tax collected by a dealer under

12  this chapter must, within 3 years following collection of the

13  tax from the purchaser, submit a written request for the

14  refund or credit to the dealer in accordance with this

15  section. A request may not be granted unless the amount

16  claimed was collected from the purchaser and was not due to

17  the state or to any local taxing jurisdiction.

18         (a)  A request for a refund or credit may be submitted

19  under this section if:

20         1.  The dealer charged and collected the tax with

21  respect to a transaction or charge that was not subject to the

22  communications services taxes imposed by this chapter or

23  chapter 203, or applied a tax rate in excess of the lawful

24  rate.

25         2.  The purchaser or the transaction was exempt or

26  immune from such taxes.

27         3.  The purchaser was assigned to the incorrect local

28  taxing jurisdiction for purposes of the taxes authorized in s.

29  202.19.

30         4.  The purchaser paid the tax in error.

31

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  1         (b)  A purchaser's request for a refund or credit must

  2  be signed by the purchaser and is complete for purposes of

  3  this section and the limitation period if it states the

  4  purchaser's name, mailing address, account number, the tax

  5  amounts claimed, the specific months during which those

  6  amounts were collected, and the reason for the purchaser's

  7  claim that such amounts were not due to the state or to any

  8  local taxing jurisdiction. If the reason for the request is an

  9  exemption or immunity or a claim that the purchaser was

10  assigned to the incorrect local taxing jurisdiction for

11  purposes of a tax imposed under s. 202.19, a completed request

12  must also include any additional information the department

13  prescribes by rule to facilitate verification of the

14  purchaser's eligibility for exemption or immunity or to

15  facilitate verification of the purchaser's service address.

16  Upon receipt of a completed request, the dealer shall

17  ascertain whether it collected the tax claimed from the

18  purchaser and whether the request is timely.

19         (c)  Within 30 days following receipt of a completed

20  request, the dealer shall determine whether any portion of the

21  tax was collected solely as the result of an error of the

22  dealer or the purchaser or solely as the result of a

23  combination of errors of the dealer and the purchaser. The

24  dealer shall refund any such amount or credit the purchaser's

25  account for such amount within 45 days following such

26  determination.

27         (d)  With respect to all amounts timely claimed which

28  the dealer collected from the purchaser and which the dealer

29  has not determined to be subject to refund or credit pursuant

30  to paragraph (c), the dealer shall, within 30 days following

31  receipt of the purchaser's completed request for refund or

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  1  credit, provide a copy of the request to the department. If

  2  the reason for the purchaser's request is described in

  3  subparagraph (a)1. or subparagraph (a)3., the dealer shall

  4  contemporaneously furnish to the department an identification

  5  of the charges included in the taxable measure and the tax

  6  rates applied to the charges, or a written identification of

  7  each local jurisdiction to which the purchaser was assigned

  8  and the amounts collected from the purchaser and reported for

  9  each such jurisdiction, as the case may be. If a purchaser's

10  request submitted to the department under this section sets

11  forth another reason for claiming a refund or credit, the

12  dealer shall furnish to the department information to

13  facilitate the department's evaluation of the request.

14         (e)  Within 90 days following receipt of the

15  purchaser's request from the dealer, the department shall

16  determine whether the tax was correctly applied and notify the

17  dealer in writing of its determination. If the department

18  determines that the tax was incorrectly applied, its

19  notification to the dealer must inform the dealer how the tax

20  should have been applied, including, in the case of an

21  incorrect assignment of the purchaser to a local taxing

22  jurisdiction, an identification of the correct local taxing

23  jurisdiction and the applicable rates of tax levied by the

24  local jurisdiction. The department's notification must also

25  inform the dealer of any portion of the amount claimed which

26  was not due to the state or to any local taxing jurisdiction

27  and approve the refund or credit of such amount to the

28  purchaser. Within 45 days following receipt of notification

29  from the department, the dealer shall issue a refund or credit

30  the purchaser's account for any such amount. The dealer's

31  obligation to issue a refund or credit the purchaser's account

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  1  is limited to amounts approved in accordance with this

  2  section.

  3         (f)  The dealer shall issue a written response advising

  4  the purchaser of the disposition of the purchaser's request.

  5  The response must specify any portion of the tax claimed which

  6  is being refunded or credited to the purchaser's account and

  7  the reason for denial of any portion of the request. The

  8  request may be denied if the request was untimely or

  9  incomplete, the dealer did not collect the tax claimed, the

10  purchaser previously received a refund of or credit for the

11  same tax, the tax collected was due, or the department failed

12  to furnish the notification required by paragraph (e). With

13  respect to any portion of the request which is granted, the

14  response must be issued at the time of the refund or credit to

15  the purchaser's account. With respect to any portion of the

16  request which is denied, the response must be issued within 45

17  days following the dealer's receipt of the request if the

18  request was not submitted to the department pursuant to

19  paragraph (d), within 45 days following the dealer's receipt

20  of the department's notification pursuant to paragraph (e) if

21  the denial is based on the department's notification, or

22  within 135 days following submission of the request to the

23  department if the dealer has not received the department's

24  notification.

25         (g)  The dealer may deduct from any refund or credit

26  under this section any amount owed by the purchaser to the

27  dealer which is delinquent.

28         (2)  This section provides the sole and exclusive

29  procedure and remedy for a purchaser who claims that a dealer

30  has collected communications services taxes imposed or

31  administered under this chapter which were not due. An action

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  1  that arises as a result of the claimed collection of taxes

  2  that were not due may not be commenced or maintained by or on

  3  behalf of a purchaser against a dealer, a municipality, a

  4  county, or the state unless the purchaser pleads and proves

  5  that the purchaser has exhausted the procedures in subsection

  6  (1) and that the defendant has failed to comply with

  7  subsection (1). However, no determination by a dealer under

  8  paragraph (1)(c) shall be deemed a failure to comply with

  9  subsection (1) if the dealer has complied with the obligations

10  imposed on it by paragraphs (1)(d), (e), and (f). In any such

11  action, it is a complete defense that the dealer, a

12  municipality, a county, or the state has refunded the taxes

13  claimed or credited the purchaser's account. In such an action

14  against a dealer, it is also a complete defense that, in

15  collecting the tax, the dealer used one or more of the methods

16  set forth in s. 202.22 for assigning the purchaser to a local

17  taxing jurisdiction. Such action is barred unless it is

18  commenced within 180 days following the date of the dealer's

19  written response under paragraph (1)(f), or within 1 year

20  following submission of the purchaser's request to the dealer

21  if the dealer failed to issue a timely written response. The

22  relief available to a purchaser as a result of collection of

23  communications services taxes that were not due is limited to

24  a refund of or credit for such taxes.

25         (3)  A dealer who remitted a tax amount to the

26  department for which the dealer subsequently issued a refund

27  or credit to the purchaser pursuant to this section, and a

28  dealer who has otherwise remitted to the department a tax

29  amount with respect to communications services which was not

30  due under this chapter or chapter 203, is entitled to a refund

31  or credit of such amount from the department. The dealer may

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  1  apply for a refund within the period prescribed in s. 215.26,

  2  or may take a credit against a tax remittance otherwise

  3  required under this chapter, within 3 years after the date

  4  that the amount for which credit is claimed was remitted to

  5  the department, or within 60 days following such provider's

  6  issuance of a refund or credit to the purchaser for such

  7  amount, whichever occurs later. In addition, s. 213.34 applies

  8  to the offset of overpayments against deficiencies in audits

  9  of dealers and purchasers.

10         (4)  A dealer who takes a credit on a subsequent

11  return, as provided in subsection (3), for a tax imposed

12  pursuant to s. 202.19 which has been collected and remitted by

13  the dealer must indicate such credit in the portion of the

14  return applicable to the local taxing jurisdiction for which

15  the tax was originally reported.

16         (5)  A dealer who has collected and remitted amounts

17  that were not due, as determined by the department under

18  paragraph (1)(e), who has issued a refund or credit to the

19  purchaser for such amounts, and who takes a credit or receives

20  a refund from the department for such amounts as provided in

21  subsection (3) is not subject to assessment for any of the tax

22  that was refunded or credited or for any interest or penalty

23  with respect to the tax. In addition, a dealer who modifies

24  its tax compliance practices to conform to a department

25  determination under paragraph (1)(e) is not subject to

26  assessment as a result of such modification, absent a

27  subsequent change in law or update to a database pursuant to

28  s. 202.22.

29         (6)  A purchaser who seeks a refund of communications

30  services taxes that the purchaser paid directly to the

31

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  1  department must apply to the department for such refund in

  2  accordance with s. 215.26 and may not apply to the dealer.

  3         (7)  The rights to a refund or credit provided in this

  4  section for purchasers and dealers may be assigned.

  5         Section 16.  Effective January 1, 2002, section 202.24,

  6  Florida Statutes, is created to read:

  7         202.24  Limitations on local taxes and fees imposed on

  8  dealers of communications services.--

  9         (1)  The authority of a public body to require taxes,

10  fees, charges, or other impositions from dealers of

11  communications services for occupying its roads and

12  rights-of-way is specifically preempted by the state because

13  of unique circumstances applicable to communications services

14  dealers. Communications services may be provided by certain

15  dealers of communications services in a manner that requires

16  the use of public roads or rights-of-way while similar

17  communications services may be provided by other dealers of

18  communications services in a manner that does not require the

19  use of public roads or rights-of-way. Although similar

20  communications services may be provided by different means,

21  the state seeks to treat dealers of communications services in

22  a nondiscriminatory and competitively neutral manner.

23         (2)(a)  Except as provided in paragraph (c), each

24  public body is prohibited from:

25         1.  Levying on or collecting from dealers or purchasers

26  of communications services any tax, charge, fee, or other

27  imposition on or with respect to the provision or purchase of

28  communications services;

29         2.  Except as otherwise provided in 47 U.S.C. s. 541

30  with respect to providers of cable services, requiring any

31  dealer of communications services to enter into or extend the

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  1  term of a franchise or other agreement that requires the

  2  payment of a tax, charge, fee, or other imposition; or

  3         3.  Except as otherwise provided in 47 U.S.C. s. 541

  4  with respect to dealers of cable services, adopting or

  5  enforcing any provision of any ordinance or agreement to the

  6  extent that such provision obligates a dealer of

  7  communications services to charge, collect, or pay to the

  8  public body a tax, charge, fee, or other imposition.

  9         (b)  For purposes of this subsection, a tax, charge,

10  fee, or other imposition includes any amount or in-kind

11  payment of property or services which is required by ordinance

12  or agreement to be paid or furnished to a public body by or

13  through a dealer of communications services in its capacity as

14  a dealer of communications services, regardless of whether

15  such amount or in-kind payment of property or services is:

16         1.  Designated as a sales tax, excise tax, subscriber

17  charge, franchise fee, user fee, privilege fee, occupancy fee,

18  rental fee, license fee, pole fee, tower fee, base-station

19  fee, or other tax or fee;

20         2.  Measured by the amounts charged or received for

21  services, regardless of whether such amount is permitted or

22  required to be separately stated on the customer's bill, by

23  the type or amount of equipment or facilities deployed, or by

24  other means; or

25         3.  Intended as compensation for the use of public

26  roads or rights-of-way, for the right to conduct business, or

27  for other purposes.

28         (c)  This subsection does not apply to:

29         1.  Local communications-services taxes levied under

30  this chapter

31         2.  Ad valorem taxes levied under chapter 200;

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  1         3.  Occupational license taxes levied under chapter

  2  205;

  3         4.  "911" service charges levied under chapter 365;

  4         5.  Amounts charged for the rental or other use of

  5  property owned by a public body which is not in the public

  6  rights-of-way to a dealer of communications services for any

  7  purpose, including but not limited to the placement or

  8  attachment of equipment used in the provision of

  9  communications services;

10         6.  Permit fees of general applicability which are not

11  related to placing or maintaining facilities in or on public

12  roads or rights-of-way;

13         7.  Permit fees related to placing or maintaining

14  facilities in or on public roads or rights-of-way;

15         8.  Any in-kind payment of property or service required

16  to be made by a dealer of cable services under s. 337.401;

17  however, this subparagraph does not apply to any extensions of

18  such agreement and is not intended to impair the rights and

19  powers of local governments to negotiate for in-kind services

20  for or in support of public, educational, or governmental

21  access, as provided under federal law, including the ability

22  of cable operators to recover such expenses as are allowed

23  under 47 U.S.C. s. 542;

24         9.  Special assessments and impact fees;

25         10.  Pole attachment fees;

26         11.  Utility service fees or other similar user fees

27  for utility services; or

28         12.  Any other generally applicable tax, fee, charge,

29  or imposition authorized by general law on the effective date

30  of this chapter.

31

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  1         (3)  As used in this section, the term "public body"

  2  has the meaning ascribed in s. 1.01(8), and includes, without

  3  limitation, every division, agency, and instrumentality

  4  thereof; however, the term does not include the state or any

  5  branch of state government.

  6         Section 17.  Effective January 1, 2002, section 202.25,

  7  Florida Statutes, is created to read:

  8         202.25  Jurisdiction; dealers not qualified to do

  9  business in this state.--

10         (1)  All suits brought by the department against any

11  dealer for any violation of this chapter for the purpose of

12  collecting any tax due from the dealer, including garnishment

13  proceedings regardless of the amount, must be brought in the

14  circuit court of this state having jurisdiction of the subject

15  matter.

16         (2)  Each dealer who is not qualified to do business in

17  this state shall designate with the department an agent within

18  this state for service of process to enforce this chapter. If

19  a dealer fails to designate such an agent, the Secretary of

20  State or any agent or employee of the dealer within this state

21  constitutes the agent for the service of such process.

22         Section 18.  Section 202.26, Florida Statutes, is

23  created to read:

24         202.26  Department powers.--

25         (1)  The department shall administer and enforce the

26  assessment and collection of the taxes, interest, and

27  penalties collected under or imposed by this chapter. The use

28  of tokens is expressly forbidden.

29         (2)  To administer the tax imposed by this chapter, the

30  Department of Revenue may adopt rules relating to:

31

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  1         (a)  The filing of returns and remittance of tax,

  2  including provisions concerning electronic funds transfer and

  3  electronic data interchange;

  4         (b)  The compilation and submission to the department

  5  of information necessary to determine the specific location of

  6  taxable transactions and the location of the ultimate

  7  consumers of such transactions;

  8         (c)  The interpretation or definition of any exemptions

  9  or exclusions from taxation granted by law;

10         (d)  Procedures for handling sales for resale and for

11  determining the taxable status of discounts and rebates; and

12         (e)  Methods for granting self-accrual authority to

13  taxpayers.

14         (3)  Notwithstanding s. 120.54(4), the department may

15  adopt emergency rules that are valid for 180 days after

16  certification pursuant to chapter 120.

17         Section 19.  Effective January 1, 2002, section 202.27,

18  Florida Statutes, is created to read:

19         202.27  Return filing; rules for self-accrual.--

20         (1)  For the purpose of ascertaining the amount of tax

21  payable under this chapter, every dealer has the duty to file

22  a return and remit the tax to the department, on or before the

23  20th day of the month, upon forms prepared and furnished by

24  the department or in a format prescribed by it. The department

25  shall, by rule, prescribe the information to be furnished by

26  taxpayers on such returns.

27         (2)  The department may require:

28         (a)  A quarterly return and payment when the tax

29  remitted by the dealer for the preceding four calendar

30  quarters did not exceed $1,000.

31

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  1         (b)  A semiannual return and payment when the tax

  2  remitted by the dealer for the preceding four calendar

  3  quarters did not exceed $500.

  4         (c)  An annual return and payment when the tax remitted

  5  by the dealer for the preceding four calendar quarters did not

  6  exceed $100.

  7         (d)  A quarterly return and monthly payment when the

  8  tax remitted by the dealer for the preceding four calendar

  9  quarters exceeded $1,000 but did not exceed $12,000.

10         (3)  The department shall accept returns, except those

11  required to be initiated through an electronic data

12  interchange, as timely if postmarked on or before the 20th day

13  of the month; if the 20th day falls on a Saturday, Sunday, or

14  federal or state legal holiday, returns are timely if

15  postmarked on the next succeeding workday. Any dealer who

16  makes sales of any nature in two or more locations for which

17  returns are required to be filed with the department and who

18  maintains records for such locations in a central office or

19  place may, on each reporting date, file one return for all

20  such places of business in lieu of separate returns for each

21  location; however, the return must clearly indicate the

22  amounts collected within each location. Each dealer shall file

23  a return for each tax period even though no tax is due for

24  such period.

25         (4)  Whenever returns are required to be made to the

26  department, the full amount of the taxes required to be paid

27  as shown by the return must be paid and accompany the return,

28  and the failure to remit the full amount of taxes at the time

29  of making the return shall cause the taxes to become

30  delinquent. All taxes and all interest and penalties imposed

31  or administered under this chapter must be remitted, to the

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  1  department at Tallahassee or at another office designated by

  2  the department, in the form required by the department.

  3         (5)  The department may require all returns of taxes

  4  under this chapter to be accompanied by a written statement,

  5  by the person or by an officer of any firm or corporation

  6  required to pay such taxes, setting forth the facts that the

  7  department requires in order to ascertain the amount of taxes

  8  that are due and payable with the return. The filing of a

  9  return that is not accompanied by payment is prima facie

10  evidence of the wrongful conversion of the money due. Any

11  person or any duly authorized corporation officer or agent, or

12  members of any firm or incorporated society or organization,

13  who refuses to make a return and pay the taxes due, as

14  required by the department and in the manner and in the form

15  that the department requires, or to state in writing that the

16  return is correct to the best of his or her knowledge and

17  belief, as required by the department, is subject to a penalty

18  of 6 percent per annum of the amount due and commits a

19  misdemeanor of the first degree, punishable as provided in s.

20  775.082 or s. 775.083. The signing of a written return has the

21  same legal effect as if made under oath without the necessity

22  of appending an oath thereto.

23         (6)  The department may provide by rule for

24  self-accrual of the communications services tax when:

25         (a)  Authorized by law for holders of direct-pay

26  permits; or

27         (b)  The taxable status of sales of communications

28  services will be known only upon use.

29         Section 20.  Effective January 1, 2002, section 202.28,

30  Florida Statutes, is created to read:

31         202.28  Credit for collecting tax.--

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  1         (1)  Except as otherwise provided in s. 202.22, for the

  2  purpose of compensating persons providing communications

  3  services for the keeping of prescribed records, the filing of

  4  timely tax returns, and the proper accounting and remitting of

  5  taxes, persons collecting taxes imposed under this chapter

  6  shall be allowed to deduct 0.75 percent of the amount of the

  7  tax due and accounted for and remitted to the department.

  8         (a)  The collection allowance may not be granted, nor

  9  may any deduction be permitted, if the required tax return or

10  tax is delinquent at the time of payment.

11         (b)  The department may deny the collection allowance

12  if a taxpayer files an incomplete return.

13         1.  For the purposes of this chapter a return is

14  incomplete if it is lacking such uniformity, completeness, and

15  arrangement that the physical handling, verification, review

16  of the return, or determination of other taxes and fees

17  reported on the return can not be readily accomplished.

18         2.  The department shall adopt rules requiring the

19  information that it considers necessary to ensure that the

20  taxes levied or administered under this chapter are properly

21  collected, reviewed, compiled, reported, and enforced,

22  including, but not limited to, rules requiring the reporting

23  of the amount of gross sales; the amount of taxable sales; the

24  amount of tax collected or due; the amount of lawful refunds,

25  deductions, or credits claimed; the amount claimed as the

26  dealer's collection allowance; the amount of penalty and

27  interest; and the amount due with the return.

28         (c)  The collection allowance and other credits or

29  deductions provided in this chapter shall be applied to the

30  taxes reported for the jurisdiction previously credited with

31  the tax paid.

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  1         (2)(a)  Any person who is required to make a return or

  2  pay the taxes imposed by this chapter who fails to timely file

  3  such return or fails to pay the taxes due within the time

  4  required, in addition to all other penalties provided by law,

  5  is subject to a specific penalty in the amount of 10 percent

  6  of any unpaid tax if the failure is for not more than 30 days,

  7  and an additional 10 percent of any unpaid tax for each

  8  additional 30 days, or fraction thereof, during which the

  9  failure continues, not to exceed a total penalty of 50

10  percent, in the aggregate, of any unpaid tax.

11         (b)  Any person who knowingly and with a willful intent

12  to evade any tax imposed under this chapter fails to file six

13  consecutive returns as required by law commits a felony of the

14  third degree, punishable as provided in s. 775.082 or s.

15  775.083.

16         (c)  Any person who makes a false or fraudulent return

17  with a willful intent to evade payment of any tax or fee

18  imposed under this chapter is liable, in addition to the other

19  penalties provided by law, for a specific penalty of 100

20  percent of the tax bill or fee, and:

21         1.  If the total amount of unreported taxes or fees is

22  less than $300:

23         a.  Such person commits, for the first offense, a

24  misdemeanor of the second degree, punishable as provided in s.

25  775.082 or s. 775.083.

26         b.  Such person commits, for the second offense, a

27  misdemeanor of the first degree, punishable as provided in s.

28  775.082 or s. 775.083.

29         c.  Such person commits, for the third and subsequent

30  offenses, a felonies of the third degree, punishable as

31  provided in s. 775.082, s. 775.083, or s. 775.084.

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  1         2.  If the total amount of unreported taxes or fees is

  2  $300 or more but less than $20,000, such person commits a

  3  felony of the third degree, punishable as provided in s.

  4  775.082, s. 775.083, or s. 775.084.

  5         3.  If the total amount of unreported taxes or fees is

  6  $20,000 or more but less than $100,000, such person commits a

  7  felony of the second degree, punishable as provided in s.

  8  775.082, s. 775.083, or s. 775.084.

  9         4.  If the total amount of unreported taxes or fees is

10  $100,000 or more, such person commits a felony of the first

11  degree, punishable as provided in s. 775.082, s. 775.083, or

12  s. 775.084.

13         Section 21.  Effective January 1, 2002, section 202.29,

14  Florida Statutes, is created to read:

15         202.29  Bad debts.--

16         (1)  A dealer who has paid the tax imposed by this

17  chapter may take a credit or obtain a refund for tax paid by

18  the dealer on unpaid balances due on worthless accounts within

19  12 months following the last day of the calendar year for

20  which the bad debt was charged off on the taxpayer's federal

21  income tax return.

22         (2)  If any accounts for which a credit or refund has

23  been received are then in whole or in part paid to the dealer,

24  the amount paid must be included in the first return filed

25  after such receipt and the tax paid accordingly.

26         (3)  Bad debts that have been assigned or sold to a

27  third party are not eligible for inclusion in the credit or

28  refund authorized by this section.

29         Section 22.  Effective January 1, 2002, section 202.30,

30  Florida Statutes, is created to read:

31

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  1         202.30  Payment of taxes by electronic funds transfers;

  2  filing of returns by electronic data interchange.--

  3         (1)  A dealer of communications services is required to

  4  remit taxes by electronic funds transfer, in the manner

  5  prescribed by the department, when the amount of tax paid by

  6  the dealer under this chapter, chapter 203, or chapter 212 in

  7  the previous state fiscal year was $50,000 or more.

  8         (2)(a)  A dealer who is required to remit taxes by

  9  electronic funds transfer shall make a return in a manner that

10  is initiated through an electronic data interchange. The

11  department shall prescribe the acceptable method of transfer;

12  the method, form, and content of the electronic data

13  interchange, giving due regard to developing uniform standards

14  for formats as adopted by the American National Standards

15  Institute; the circumstances under which an electronic data

16  interchange will serve as a substitute for the filing of

17  another form of return; and the means, if any, by which

18  taxpayers will be provided with acknowledgments. The

19  department must accept such returns as timely if initiated and

20  accepted on or before the 20th day of the month. If the 20th

21  day falls on a Saturday, Sunday, or federal or state legal

22  holiday, returns are timely if initiated and accepted on the

23  next succeeding workday.

24         (b)  The department may waive the requirement to make a

25  return through an electronic data interchange when problems

26  arise with respect to the taxpayer's computer capabilities,

27  data systems changes, or operating procedures. To obtain a

28  waiver, the taxpayer must prove to the department that such

29  problems exist.

30         (3)(a)  The department shall design, prepare, print,

31  and furnish to all dealers, except dealers filing through

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  1  electronic data interchange, or make available or prescribe to

  2  the dealers all necessary forms for filing returns and

  3  instructions to ensure a full collection from dealers and an

  4  accounting for the taxes due, but failure of any dealer to

  5  secure such forms does not relieve the dealer of the

  6  obligation to pay the tax at the time and in the manner

  7  required.

  8         (b)  The department shall prescribe the format and

  9  instructions necessary for filing returns in a manner that is

10  initiated through an electronic data interchange to ensure a

11  full collection from dealers and an accounting for the taxes

12  due. The failure of any dealer to use such format does not

13  relieve the dealer of the obligation to pay the tax at the

14  time and in the manner required.

15         Section 23.  Effective January 1, 2002, section 202.31,

16  Florida Statutes, is created to read:

17         202.31  Sale of business; liability for tax;

18  procedures; penalty for violations.--

19         (1)  If any dealer of communications services who is

20  liable for any tax, interest, or penalty under this chapter

21  sells his or her business or substantially all of his or her

22  assets, the dealer shall make a final return and payment

23  within 15 days thereafter. The dealer's successors or assigns

24  shall withhold a sufficient portion of the purchase money to

25  safely cover the amount of such taxes, interest, and penalties

26  due and unpaid until the former owner produces a receipt from

27  the department showing that they have been paid or a

28  certificate stating that no taxes, interest, or penalty are

29  due. If the purchaser of a business or the purchaser of

30  substantially all of the assets of a business fails to

31  withhold a sufficient amount of the purchase money as required

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  1  by this subsection, he or she is personally liable for the

  2  payment of the taxes, interest, and penalties accruing and

  3  unpaid on account of the operation of the business by any

  4  former owners or assigns. Any receipt or certificate from the

  5  department does not, without an audit of the selling dealer's

  6  books and records by the department, guarantee that there is

  7  not a tax deficiency owed the state from operation of the

  8  seller's business. To secure protection from the transferee's

  9  liability under this section, the seller or purchaser may

10  request an audit of the seller's books and records. The

11  department may contract with private auditors pursuant to s.

12  213.28 to perform the audit. The department may charge the

13  cost of the audit to the person requesting the audit.

14         (2)  If any dealer who is liable for any tax, interest,

15  or penalty quits the business without the benefit of a

16  purchaser and there are no successors or assigns, he or she

17  shall make a final return and payment within 15 days. Any

18  person who fails to file such final return and make payment is

19  prohibited from engaging in any business in this state until

20  the person has filed such final return and paid any moneys

21  due. The Department of Legal Affairs may seek an injunction,

22  at the request of the department, to prevent any activity in

23  the performance of further business activity until such tax is

24  paid. A temporary injunction enjoining further business

25  activity may be granted by a court without notice.

26         (3)  If a dealer is delinquent in the payment of the

27  taxes imposed or administered by this chapter, the department

28  may give notice of the amount of such delinquency by

29  registered mail to all persons having in their possession or

30  under their control any credits or other personal property

31  belonging to such dealer or owing any debts to such dealer at

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  1  the time of receipt by them of such notice. All persons so

  2  notified shall within 5 days after receipt of the notice

  3  advise the department of all such credits, other personal

  4  property, or debts in their possession, under their control,

  5  or owing by them. After receiving the notice, the persons so

  6  notified may not transfer or make any other disposition of the

  7  credits, other personal property, or debts in their possession

  8  or under their control at the time they receive the notice

  9  until the department consents to a transfer or disposition or

10  until 60 days elapse after the receipt of the notice,

11  whichever occurs first, except that the credits, other

12  personal property, or debts that exceed the delinquent amount

13  stipulated in the notice are not subject to the provisions of

14  this section, wherever held, if such dealer does not have a

15  prior history of sales tax delinquencies. All persons notified

16  must, within 5 days, advise the department of any credits or

17  other personal property belonging to such dealer or any debts

18  incurred and owing to such dealer which subsequently come into

19  their possession or under their control during the time

20  prescribed by the notice or until the department consents to a

21  transfer or disposition, whichever occurs first. If the notice

22  seeks to prevent the transfer or other disposition of a

23  deposit in a bank or other credits or personal property in the

24  possession or under the control of a bank, the notice is

25  ineffective unless it is delivered or mailed to the office of

26  the bank at which the deposit is carried or at which the

27  credits or personal property are held. If, during the

28  effective period of the notice to withhold, any person so

29  notified makes any transfer or disposition of the property or

30  debts required to be withheld, he or she is liable to the

31  state for any indebtedness due under this chapter from the

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  1  person with respect to whose obligation the notice was given

  2  to the extent of the value of the property or the amount of

  3  the debts thus transferred or paid if, solely by reason of

  4  such transfer or disposition, the state is unable to recover

  5  the indebtedness of the person with respect to whose

  6  obligation the notice was given. All such credits or other

  7  personal property or debts are subject to garnishment by the

  8  department for satisfaction of the delinquent taxes due.

  9         (4)  After notice by the department of a transferee's

10  liability under this section, the dealer shall have 60 days

11  within which to file an action as provided in chapter 72.

12         (5)  Any violation of this section is a misdemeanor of

13  the first degree, punishable as provided in s. 775.082 or s.

14  775.083.

15         Section 24.  Effective January 1, 2002, section 202.32,

16  Florida Statutes, is created to read:

17         202.32  State and local agencies to cooperate in

18  administration of law.--The department may request from any

19  state, county, municipal, or local governmental agency any

20  information that the department considers necessary in

21  administering this chapter, and such agency shall furnish such

22  information.

23         Section 25.  Effective January 1, 2002, section 202.33,

24  Florida Statutes, is created to read:

25         202.33  Taxes declared to be government funds;

26  penalties for failure to remit taxes; due and delinquent

27  dates; judicial review.--

28         (1)  The taxes collected under this chapter become

29  government funds from the moment of collection by the dealer.

30         (2)  Any person who with intent to unlawfully deprive

31  or defraud the state or a local government of its moneys or

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  1  the use or benefit thereof fails to remit taxes collected

  2  under this chapter is guilty of the theft of government funds,

  3  punishable as follows:

  4         (a)  If the total amount of stolen revenue is less than

  5  $300, the offense is a misdemeanor of the second degree,

  6  punishable as provided in s. 775.082 or s. 775.083. For a

  7  second offense, the offender is guilty of a misdemeanor of the

  8  first degree, punishable as provided in s. 775.082 or s.

  9  775.083. For a third or subsequent offense, the offender is

10  guilty of a felony of the third degree, punishable as provided

11  in s. 775.082, s. 775.083, or s. 775.084.

12         (b)  If the total amount of stolen revenue is $300 or

13  more, but less than $20,000, the offense is a felony of the

14  third degree, punishable as provided in s. 775.082, s.

15  775.083, or s. 775.084.

16         (c)  If the total amount of stolen revenue is $20,000

17  or more, but less than $100,000, the offense is a felony of

18  the second degree, punishable as provided in s. 775.082, s.

19  775.083, or s. 775.084.

20         (d)  If the total amount of stolen revenue is $100,000

21  or more, the offense is a felony of the first degree,

22  punishable as provided in s. 775.082, s. 775.083, or s.

23  775.084.

24         (3)  All taxes collected under this chapter must be

25  remitted to the department. In addition to criminal sanctions,

26  the department shall, when any tax becomes delinquent or is

27  otherwise in jeopardy under this chapter, issue a warrant for

28  the full amount of the tax due or estimated to be due, with

29  the interest, penalties, and cost of collection, directed to

30  the sheriffs of the state, and mail the warrant to the clerk

31  of the circuit court of the county where any property of the

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  1  taxpayer is located. Upon receipt of the warrant, the clerk of

  2  the circuit court shall record it, and thereupon the amount of

  3  the warrant becomes a lien on any real or personal property of

  4  the taxpayer in the same manner as a recorded judgment. The

  5  department may issue a tax execution to enforce the collection

  6  of taxes imposed by this chapter and deliver it to any

  7  sheriff. The sheriff shall thereupon proceed in the same

  8  manner as prescribed by law for executions and shall be

  9  entitled to the same fees for his or her services in executing

10  the warrant to be collected. The department may also have a

11  writ of garnishment with respect to any indebtedness due to

12  the delinquent dealer by a third person in any goods, money,

13  chattels, or effects of the delinquent dealer in the hands,

14  possession, or control of the third person. Upon payment of

15  the execution, warrant, judgment, or garnishment, the

16  department shall satisfy the lien of record within 30 days. If

17  there is jeopardy to the revenue and jeopardy is asserted in

18  or with an assessment, the department shall proceed in the

19  manner specified for jeopardy assessments in s. 213.732.

20         Section 26.  Effective January 1, 2002, section 202.34,

21  Florida Statutes, is created to read:

22         202.34  Records required to be kept; power to inspect;

23  audit procedure.--

24         (1)(a)  Each dealer shall secure, maintain, and keep as

25  long as required by s. 213.35 a complete record of

26  communications services sold at retail by the dealer, together

27  with invoices, records of gross receipts from such sales, and

28  other pertinent records and papers required by the department

29  for the reasonable administration of this chapter; all such

30  records that are located or maintained in this state must be

31  made available for inspection by the department at all

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  1  reasonable hours at the dealer's office or other place of

  2  business located in this state. Any dealer who maintains such

  3  books and records outside this state must make such books and

  4  records available for inspection by the department wherever

  5  the dealer's general records are kept. Any dealer subject to

  6  the provisions of this chapter who violates this subsection is

  7  guilty of a misdemeanor of the first degree, punishable as

  8  provided in s. 775.082 or s. 775.083. If, however, any

  9  subsequent offense involves intentional destruction of such

10  records with an intent to evade payment of or deprive the

11  government of any tax revenues, such subsequent offense

12  constitutes a felony of the third degree, punishable as

13  provided in s. 775.082 or s. 775.083.

14         (b)  For the purpose of this subsection, if a dealer

15  does not have adequate records of its sales of communications

16  services, the department may, upon the basis of a test or

17  sampling of the dealer's available records or other

18  information relating to the sales made by such dealer for a

19  representative period, determine the proper basis for

20  assessing tax. This subsection does not affect the duty of the

21  dealer to collect, or the liability of any consumer to pay,

22  any tax imposed or administered under this chapter.

23         (c)  If the records of a dealer are adequate but

24  voluminous, the department may reasonably sample such records

25  and project the audit findings derived therefrom over the

26  entire audit period to determine the proper basis for

27  assessing tax. In order to conduct such a sample, the

28  department must first make a good-faith effort to reach an

29  agreement with the dealer which provides for the means and

30  methods to be used in the sampling process. If an agreement is

31  not reached, the dealer is entitled to a review by the

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  1  executive director or the executive director's designee of the

  2  sampling method to be used by the auditor.

  3         (2)  For the purpose of enforcement of this chapter,

  4  each dealer must allow the department to examine its books and

  5  records at all reasonable hours; and, if the dealer refuses,

  6  the department may petition the circuit court to order the

  7  dealer to permit such examination, subject to the right of

  8  removal of the cause to the judicial circuit wherein such

  9  person's business is located or wherein such person's books

10  and records are kept.

11         (3)  Each wholesaler of communications services is

12  required to permit the department to examine its books and

13  records at all reasonable hours. The wholesaler must also

14  maintain its books and records as long as required by s.

15  213.35 in order to disclose the sales of all services sold, to

16  whom sold, and also the amount sold, in such form and in such

17  manner as the department requires, so that the department can

18  determine the volume of services sold by wholesalers to

19  dealers, as defined under this chapter, and the dates and

20  amounts of sales made. The department may petition the circuit

21  court to require any wholesaler who refuses to keep such

22  records or to permit such inspection to submit to such

23  inspection, subject to the right of removal of the cause to

24  the judicial circuit wherein such person's business is located

25  or wherein such person's books and records are kept.

26         (4)(a)  The department shall send written notification,

27  at least 60 days prior to the date an auditor is scheduled to

28  begin an audit, informing the taxpayer of the audit. The

29  department is not required to give 60 days' prior notification

30  of a forthcoming audit whenever the taxpayer requests an

31  emergency audit.

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  1         (b)  The written notification must specify:

  2         1.  The approximate date on which the auditor is

  3  scheduled to begin the audit.

  4         2.  A reminder that all of the records, receipts,

  5  invoices, resale certificates, and related documentation of

  6  the taxpayer must be made available to the auditor.

  7         3.  Any other requests or suggestions that the

  8  department considers necessary.

  9         (c)  Only records, receipts, invoices, resale

10  certificates, and related documentation that are available to

11  the auditor when the audit begins are acceptable for the

12  purposes of the audit. A resale certificate containing a date

13  prior to the date the audit commences constitutes acceptable

14  documentation of the specific transactions that occurred in

15  the past.

16         (d)  The provisions of this chapter concerning

17  fraudulent or improper records, receipts, invoices, resale

18  certificates, and related documentation apply with respect to

19  any audit.

20         (e)  The requirement in paragraph (a) of 60 days'

21  written notification does not apply in cases of distress or

22  jeopardy as provided in s. 202.23 or s. 202.36.

23         Section 27.  Effective January 1, 2002, section 202.35,

24  Florida Statutes, is created to read:

25         202.35  Powers of department in dealing with

26  delinquents; tax to be separately stated.--

27         (1)  If any dealer or other person fails to remit the

28  tax, or any portion thereof, on or before the day when the tax

29  is required by law to be paid, there will be added to the

30  amount due interest at the rate calculated pursuant to s.

31  213.235 of the amount due from the date due until paid.

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  1  Interest on the delinquent tax is to be calculated beginning

  2  on the 21st day of the month following the month for which the

  3  tax is due, except as otherwise provided in this chapter.

  4         (2)  All penalties and interest imposed by this chapter

  5  are payable to and collectible by the department in the same

  6  manner as if they were a part of the tax collected under this

  7  chapter. The department may settle or compromise any such

  8  interest or penalties pursuant to s. 213.21.

  9         (3)  If a dealer or other person fails or refuses to

10  make his or her records available for inspection so that an

11  audit or examination of his or her books and records cannot be

12  made, fails or refuses to register as a dealer, fails to make

13  a report and pay the tax as provided by this chapter, makes a

14  grossly incorrect report, or makes a report that is false or

15  fraudulent, the department shall make an assessment from an

16  estimate based upon the best information then available to it

17  for the taxable period of retail sales of the dealer, together

18  with any accrued interest and penalties. The department shall

19  then proceed to collect the taxes, interest, and penalties on

20  the basis of such assessment, which shall be considered prima

21  facie correct; and the burden to show the contrary rests upon

22  the dealer or other person.

23         (4)  Each dealer who makes retail sales of

24  communications services shall add the amount of the taxes

25  imposed or administered under this chapter to the price of the

26  services sold by it and shall state the taxes separately from

27  the price of the services on all invoices. The combined amount

28  of taxes due under ss. 202.12 and 203.01 shall be stated and

29  identified as the Florida communications tax, and the combined

30  amount of taxes due under s. 202.19 shall be stated and

31  identified as the local communications tax.

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  1         (5)  A dealer may not advertise or hold out to the

  2  public, in any manner, directly or indirectly, that it will

  3  absorb all or any part of the tax; that it will relieve the

  4  purchaser of the payment of all or any part of the tax; that

  5  the tax will not be added to the selling price of the property

  6  or services sold or released; or, when added, that it or any

  7  part thereof will be refunded either directly or indirectly by

  8  any method. A person who violates this subsection with respect

  9  to advertising or refund is guilty of a misdemeanor of the

10  second degree, punishable as provided in s. 775.082 or s.

11  775.083. A second or subsequent offense constitutes a

12  misdemeanor of the first degree, punishable as provided in s.

13  775.082 or s. 775.083.

14         (6)  Whenever in the construction, administration, or

15  enforcement of this chapter there is any question respecting a

16  duplication of the tax, the sale to the end consumer or last

17  retail sale is the sale to be taxed, and, insofar as is

18  practicable, there is to be no duplication or pyramiding of

19  the tax.

20         Section 28.  Effective January 1, 2002, section 202.36,

21  Florida Statutes, is created to read:

22         202.36  Departmental powers; hearings; distress

23  warrants; bonds; subpoenas and subpoenas duces tecum.--

24         (1)  Any person required to pay a tax imposed or

25  administered under this chapter or to make a return who

26  renders a return or makes a payment of a tax with intent to

27  deceive or defraud the government and prevent the government

28  from collecting the amount of taxes imposed or administered by

29  this chapter, or who otherwise fails to comply with this

30  chapter for the taxable period for which any return is made,

31  any tax is paid, or any report is made to the department, may

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  1  be required by the department to show cause at a time and

  2  place to be set by the department, after 10 days' notice in

  3  writing requiring the production of such books, records, or

  4  papers relating to the business of such person for such tax

  5  period as the department requires. The department may require

  6  such person or their employees to give testimony under oath

  7  and answer interrogatories respecting the sale of

  8  communications services within this state, the failure to make

  9  a true report thereof, or failure to pay the true amount of

10  the tax required to be paid under this chapter. If such person

11  fails to produce such books, records, or papers or to appear

12  and answer questions within the scope of investigation

13  relating to matters concerning taxes to be imposed or

14  administered under this chapter, or fails to allow his or her

15  agents or employees to give testimony, the department may

16  estimate any unpaid deficiencies in taxes to be assessed

17  against such person based on whatever information is available

18  to it and may issue a distress warrant for the collection of

19  such taxes, interest, or penalties estimated by the department

20  to be due and payable; and such assessment shall be deemed

21  prima facie correct. In such cases, the warrant shall be

22  issued to the sheriff of any county in the state where such

23  person owns or possesses any property; and the sheriff shall

24  seize such property as is required to satisfy any such taxes,

25  interest, or penalties and sell such property under the

26  distress warrant in the same manner as property is permitted

27  to be seized and sold under distress warrants issued to secure

28  the payment of delinquent taxes. The department shall also

29  have the right to writ of garnishment to subject any

30  indebtedness due to the delinquent dealer by a third person in

31  any goods, money, chattels, or effects of the delinquent

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  1  dealer in the hands, possession, or control of the third

  2  person in the manner provided by law. The person whose tax

  3  return or report is being investigated may by written request

  4  to the department require that the hearing be set at a place

  5  within the judicial circuit wherein the person's business is

  6  located or wherein such person's books and records are kept.

  7  If there is jeopardy to the revenue and jeopardy is asserted

  8  in or with an assessment, the department shall proceed in the

  9  manner specified for jeopardy assessment in s. 213.732.

10         (2)  Whenever it is necessary to ensure compliance with

11  this chapter, the department shall require a cash deposit,

12  bond, or other security as a condition to a person's obtaining

13  or retaining a dealer's certificate of registration under this

14  chapter. The bond must be in such form and amount as the

15  department deems appropriate under the particular

16  circumstances. Any person who fails to produce such cash

17  deposit, bond, or other security may not obtain or retain a

18  dealer's certificate of registration under this chapter. The

19  Department of Legal Affairs may seek an injunction, when

20  requested by the department, to prevent such person from doing

21  business subject to the provisions of this chapter until the

22  cash deposit, bond, or other security is posted with the

23  department. Any security required to be deposited may be sold

24  by the department at public sale if it becomes necessary to do

25  so in order to recover any tax, interest, or penalty due.

26  Notice of such sale may be served personally or by mail upon

27  the person who deposited the security. Mailing the notice to

28  the last known address appearing on the records of the

29  department constitutes adequate service. Any proceeds of the

30  sale exceeding the amount due under this chapter must be

31  returned to the person who deposited the security.

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  1         (3)  The department or any person authorized by it in

  2  writing is authorized to make and sign assessments, tax

  3  warrants, assignments of tax warrants, and satisfaction of tax

  4  warrants.

  5         (4)(a)  The department may issue subpoenas or subpoenas

  6  duces tecum compelling the attendance and testimony of

  7  witnesses and the production of books, records, written

  8  materials, and electronically recorded information. Subpoenas

  9  must be issued with the written and signed approval of the

10  executive director or his or her designee on written and sworn

11  application by any employee of the department. The application

12  must set forth the reason for the application, the name of the

13  person subpoenaed, the time and place of appearance of the

14  witness, and a description of any books, records, or

15  electronically recorded information to be produced, together

16  with a statement by the applicant that the department has

17  unsuccessfully attempted other reasonable means of securing

18  information and that the testimony of the witness or the

19  written or electronically recorded materials sought in the

20  subpoena are necessary for the collection of taxes, penalty,

21  or interest or the enforcement of the taxes levied or

22  administered under this chapter. A subpoena shall be served in

23  the manner provided by law and by the Florida Rules of Civil

24  Procedure and shall be returnable only during regular business

25  hours and at least 20 calendar days after the date of service

26  of the subpoena. Any subpoena to which this subsection applies

27  must identify the taxpayer to whom the subpoena relates and to

28  whom the records pertain and must provide other information to

29  enable the person subpoenaed to locate the records required

30  under the subpoena. The department shall give notice to the

31  taxpayer to whom the subpoena relates within 3 days after the

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  1  day on which the service of the subpoena is made. Within 14

  2  days after service of the subpoena, the person to whom the

  3  subpoena is directed may serve written objection to the

  4  inspection or copying of any of the designated materials. If

  5  objection is made, the department may not inspect or copy the

  6  materials, except pursuant to an order of the circuit court.

  7  If an objection is made, the department may petition any

  8  circuit court for an order to comply with the subpoena. The

  9  subpoena must contain a written notice of the right to object

10  to the subpoena. Every subpoena served upon the witness or

11  custodian of records must be accompanied by a copy of the

12  provisions of this subsection. If a person refuses to obey a

13  subpoena or subpoena duces tecum, the department may apply to

14  any circuit court of this state to enforce compliance with the

15  subpoena. Witnesses are entitled to be paid a mileage

16  allowance and witness fees as authorized for witnesses in

17  civil cases.

18         (b)1.  If any subpoena is served on any person who is a

19  third-party recordkeeper and the subpoena requires the

20  production of any portion of the records made or kept of the

21  business transactions or affairs of any person other than the

22  person subpoenaed, notice of the subpoena must be given to any

23  person to whom the records pertain and to the taxpayer to whom

24  the subpoena relates. Such notice must be given within 3 days

25  after the day on which the service on the third-party

26  recordkeeper is made, if the department can at that time

27  identify the person to whom the records pertain. If the person

28  to whom the records pertain cannot be identified at the time

29  of issuance of the subpoena, the third-party recordkeeper

30  shall immediately inform the department of such person's

31  identity, and the department shall give notice to that person

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  1  within 3 days thereafter. The notice must be accompanied by a

  2  copy of the subpoena that has been served and must contain

  3  directions for staying compliance with the subpoena under

  4  subparagraph (c)2.

  5         2.  The notice is sufficient if, on or before the 3rd

  6  day, the notice is delivered in hand to the person entitled to

  7  notice or is mailed by certified or registered mail to the

  8  last-known mailing address of the person, or, in the absence

  9  of a last known address, is left with the person subpoenaed.

10         3.  As used in this subsection, the term "third-party

11  recordkeeper" means:

12         a.  Any mutual savings bank, cooperative bank, domestic

13  building and loan association, or other savings institution

14  chartered and supervised as a savings and loan association or

15  similar association under federal or state law; a bank as

16  defined in s. 581 of the Internal Revenue Code; or any credit

17  union within the meaning of s. 501(c)(14)(A) of the Internal

18  Revenue Code;

19         b.  Any consumer reporting agency as defined under s.

20  603(f) of the Fair Credit Reporting Act, 15 U.S.C. s.

21  1681a(f);

22         c.  Any person extending credit through the use of

23  credit cards or similar devices;

24         d.  Any broker as defined in s. 3(a)(4) of the

25  Securities Exchange Act of 1934, 15 U.S.C. s. 78c(a)(4);

26         e.  Any attorney;

27         f.  Any accountant;

28         g.  Any barter exchange as defined in s. 6045(c)(3) of

29  the Internal Revenue Code; or

30         h.  Any regulated investment company as defined in s.

31  851 of the Internal Revenue Code.

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  1         4.  This paragraph does not apply to a subpoena served

  2  on the person with respect to whose liability the subpoena is

  3  issued or an officer or employee of the person; or to a

  4  subpoena to determine whether or not records of the business

  5  transactions or affairs of an identified person have been made

  6  or kept; or to a subpoena described in paragraph (f).

  7         (c)1.  Notwithstanding any other law, a person who is

  8  entitled to notice of a subpoena under paragraph (b) and the

  9  taxpayer to whom the subpoena relates have the right to

10  intervene in any proceeding with respect to the enforcement of

11  the subpoena under paragraph (a).

12         2.  Notwithstanding any other law, a person who is

13  entitled to notice of a subpoena under paragraph (b) and the

14  taxpayer to whom the subpoena relates have the right to stay

15  compliance with the subpoena if, not later than the 14th day

16  after the day the notice is given in the manner provided in

17  subparagraph (b)2.:

18         a.  Notice of intent to stay the subpoena is given in

19  writing to the person subpoenaed;

20         b.  A copy of the notice of intent to stay the subpoena

21  is mailed by registered or certified mail to the person and to

22  the department; and

23         c.  Suit is filed against the department in the circuit

24  court to stay compliance with the subpoena.

25         (d)  An examination of any records required to be

26  produced under a subpoena as to which notice is required under

27  paragraph (b) may not be made:

28         1.  Before the expiration of the 14-day period allowed

29  for the notice of intent to stay under subparagraph (c)2.; or

30         2.  When the requirements of subparagraph (c)2. have

31  been met, except in accordance with an order issued by the

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  1  circuit court authorizing examination of the records or with

  2  the consent of the person staying compliance.

  3         (e)  Any subpoena issued under paragraph (a) which does

  4  not identify the person with respect to whose liability the

  5  subpoena is issued may be served only after a proceeding in

  6  any circuit court in which the department establishes that:

  7         1.  The subpoena relates to the investigation of a

  8  particular person or ascertainable group or class of persons.

  9         2.  There is reasonable basis for believing that the

10  person or group or class of persons may fail or may have

11  failed to comply with any provision of state law.

12         3.  The information sought to be obtained from the

13  examination of the records and the identity of the person or

14  persons with respect to whose liability the subpoena is issued

15  is not readily available from other sources.

16         (f)  In the case of a subpoena issued under paragraph

17  (a), the provisions of subparagraph (b)1. and paragraph (c) do

18  not apply if, upon petition by the department, a circuit court

19  determines, on the basis of the facts and circumstances

20  alleged, that there is reasonable cause to believe that the

21  giving of notice may lead to attempts to conceal, destroy, or

22  alter records relevant to the examination, may prevent the

23  communication of information from other persons through

24  intimidation, bribery, or collusion, or may result in flight

25  to avoid prosecution, testifying, or production of records.

26         (g)1.  Any circuit court has jurisdiction to hear and

27  determine proceedings brought under paragraph (e) or paragraph

28  (f). The determinations required to be made under paragraphs

29  (e) and (f) shall be ex parte and shall be made solely upon

30  the petition and supporting affidavits. An order denying the

31  petition shall be deemed a final order that may be appealed.

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  1         2.  Except for cases that the court considers of great

  2  importance, any proceeding brought for the enforcement of any

  3  subpoena or any proceeding under this subsection, and any

  4  appeal therefrom, takes precedence on the docket over all

  5  cases and shall be assigned for hearing and decided at the

  6  earliest practicable date.

  7         (h)  The department shall by rule establish the rates

  8  and conditions for payments to reimburse reasonably necessary

  9  costs directly incurred by third-party recordkeepers in

10  searching for, reproducing, or transporting books, papers,

11  records, or other data required to be produced by subpoena

12  upon request of the department. The reimbursement shall be in

13  addition to any mileage allowance and fees paid under

14  paragraph (a).

15         (i)1.  Except as provided in subparagraph 2., an action

16  initiated in circuit court under this subsection must be filed

17  in the circuit court in the county where:

18         a.  The taxpayer to whom the subpoena relates resides

19  or maintains his or her principal commercial domicile in this

20  state;

21         b.  The person subpoenaed resides or maintains his or

22  her principal commercial domicile in this state; or

23         c.  The person to whom the records pertain resides or

24  maintains his or her principal commercial domicile in this

25  state.

26         2.  Venue in an action initiated in circuit court under

27  this subsection by a person who is not a resident of this

28  state or does not maintain a commercial domicile in this state

29  rests in Leon County.

30

31

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  1         3.  Venue in an action initiated in circuit court

  2  pursuant to paragraph (e) rests in the Second Judicial Circuit

  3  Court in and for Leon County.

  4         Section 29.  Section 202.37, Florida Statutes, is

  5  created to read:

  6         202.37  Special rules for administration of local

  7  communications services tax.--

  8         (1)(a)  Except as otherwise provided in this section,

  9  all statutory provisions and administrative rules applicable

10  to the communications services tax imposed by s. 202.12 apply

11  to any local communications services tax imposed under s.

12  202.19, and the department shall administer, collect, and

13  enforce all taxes imposed under s. 202.19, including interest

14  and penalties attributable thereto, in accordance with the

15  same procedures used in the administration, collection, and

16  enforcement of the communications services tax imposed by s.

17  202.12.

18         (b)  The department may contract with one or more

19  private entities to assist it in fulfilling its obligation of

20  administering the local communications services taxes imposed

21  under this chapter, including, but not limited to, the

22  compilation, maintenance, and publication of data pursuant to

23  ss. 202.21 and 202.22.

24         (2)  Each dealer of communications services obligated

25  to collect and remit one or more local communications services

26  taxes imposed under s. 202.19 shall separately report and

27  identify each such tax to the department, by jurisdiction, on

28  a form prescribed by the department and shall pay such taxes

29  to the department. However, taxes imposed under s. 202.19(5)

30  may be added to and included in the amounts reported to the

31  department as taxes imposed under s. 202.19(1) upon notice to

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  1  the department in accordance with rules of the department. A

  2  dealer of communications services may include in a single

  3  payment to the department:

  4         (a)  The total amount of all local communications

  5  services taxes imposed pursuant to s. 202.19; and

  6         (b)  The amount of communications services tax imposed

  7  by s. 202.12.

  8         Section 30.  The Executive Director of the Department

  9  of Revenue shall appoint an advisory council to be known as

10  the Simplified Communications Tax Advisory Council. The

11  members shall be appointed by August 1, 2000. Each member

12  shall serve at the discretion of the executive director for a

13  term not to exceed 2 years. The council shall consist of

14  individuals representing consumers, counties, municipalities,

15  cable and telecommunications companies, and other

16  communications companies or interested parties that the

17  executive director deems appropriate. The council shall

18  consist of not less than 11 members but not more than 17

19  members. The executive director or his or her designee shall

20  serve as the chair of the council. The council shall advise

21  the Department of Revenue in implementing a transition

22  strategy, developing internal controls and processes, adopting

23  rules, and identifying issues for further legislative

24  consideration.

25         Section 31.  Effective January 1, 2002, and applicable

26  to communications services reflected on bills dated on or

27  after that date, section 203.01, Florida Statutes, as amended

28  by this act, is amended to read:

29         203.01  Tax on gross receipts for utility and

30  communications services.--

31

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  1         (1)(a)1.  Every person that receives payment for any

  2  utility service shall report by the last day of each month to

  3  the Department of Revenue, under oath of the secretary or some

  4  other officer of such person, the total amount of gross

  5  receipts derived from business done within this state, or

  6  between points within this state, for the preceding month and,

  7  at the same time, shall pay into the State Treasury an amount

  8  equal to a percentage of such gross receipts at the rate set

  9  forth in paragraph (b).  Such collections shall be certified

10  by the Comptroller upon the request of the State Board of

11  Education.

12         2.  A tax is levied on communications services as

13  defined in s. 202.11(3). Such tax shall be applied to the same

14  services and transactions as are subject to taxation under

15  chapter 202, and shall be administered and collected pursuant

16  to the provisions of chapter 202.

17         (b)  Beginning July 1, 1992, and thereafter, The rate

18  applied to utility services shall be 2.5 percent. The rate

19  applied to communications services shall be 2.2 percent.

20         (c)  Any person who purchases, installs, rents, or

21  leases a telephone system or telecommunication system for his

22  or her own use to provide that person with telephone service

23  or telecommunication service which is a substitute for any

24  telephone company switched service or a substitute for any

25  dedicated facility by which a telephone company provides a

26  communication path shall register with the Department of

27  Revenue and pay into the State Treasury a yearly amount equal

28  to a percentage of the actual cost of operating such system at

29  the rate set forth in paragraph (b). "Actual cost" includes,

30  but is not limited to, depreciation, interest, maintenance,

31  repair, and other expenses directly attributable to the

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  1  operation of such system.  For purposes of this paragraph, the

  2  depreciation expense to be included in actual cost shall be

  3  the depreciation expense claimed for federal income tax

  4  purposes. The total amount of any payment required by a lease

  5  or rental contract or agreement shall be included within the

  6  actual cost.  The provisions of this paragraph do not apply to

  7  the use by any local telephone company or any

  8  telecommunication carrier of its own telephone system or

  9  telecommunication system to conduct a telecommunication

10  service for hire or to the use of any radio system operated by

11  any county or municipality or by the state or any political

12  subdivision thereof.  If a system described in this paragraph

13  is located in more than one state, the actual cost of such

14  system for purposes of this paragraph shall be the actual cost

15  of the system's equipment located in Florida.  The term

16  "telecommunications carrier" specifically includes cellular

17  telephone carriers and other radio common carriers.

18         (c)(d)  Electricity produced by cogeneration or by

19  small power producers which is transmitted and distributed by

20  a public utility between two locations of a customer of the

21  utility pursuant to s. 366.051 is subject to the tax imposed

22  by this section.  The tax shall be applied to the cost price

23  of such electricity as provided in s. 212.02(4) and shall be

24  paid each month by the producer of such electricity.

25         (d)(e)  Electricity produced by cogeneration or by

26  small power producers during the 12-month period ending June

27  30 of each year which is in excess of nontaxable electricity

28  produced during the 12-month period ending June 30, 1990, is

29  subject to the tax imposed by this section.  The tax shall be

30  applied to the cost price of such electricity as provided in

31  s. 212.02(4) and shall be paid each month, beginning with the

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  1  month in which total production exceeds the production of

  2  nontaxable electricity for the 12-month period ending June 30,

  3  1990.  For purposes of this paragraph, "nontaxable

  4  electricity" means electricity produced by cogeneration or by

  5  small power producers which is not subject to tax under

  6  paragraph (d).  Taxes paid pursuant to paragraph (d) may be

  7  credited against taxes due under this paragraph.  Electricity

  8  generated as part of an industrial manufacturing process which

  9  manufactures products from phosphate rock, raw wood fiber,

10  paper, citrus or any agricultural product shall not be subject

11  to the tax imposed by this paragraph. "Industrial

12  manufacturing process" means the entire process conducted at

13  the location where the process takes place.

14         (e)(f)  Any person other than a cogenerator or small

15  power producer described in paragraph (e) who produces for his

16  or her own use electrical energy which is a substitute for

17  electrical energy produced by an electric utility as defined

18  in s. 366.02 is subject to the tax imposed by this section.

19  The tax shall be applied to the cost price of such electrical

20  energy as provided in s. 212.02(4) and shall be paid each

21  month.  The provisions of this paragraph do not apply to any

22  electrical energy produced and used by an electric utility.

23         (2)(a)  In addition to any other penalty provided by

24  law, any person who fails to timely report and pay any tax

25  imposed on gross receipts from utility service under this

26  chapter shall pay a penalty equal to 10 percent of any unpaid

27  tax, if the failure is for less than 31 days, plus an

28  additional 10 percent of any unpaid tax for each additional 30

29  days or fraction thereof.  However, such penalty may not be

30  less than $10 or exceed a total of 50 percent in the aggregate

31  of any unpaid tax.

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  1         (b)  In addition to any other penalty provided by law,

  2  any person who falsely or fraudulently reports or unlawfully

  3  attempts to evade paying any tax imposed on gross receipts

  4  from utility service under this chapter shall pay a penalty

  5  equal to 100 percent of any tax due and is guilty of a

  6  misdemeanor of the second degree, punishable as provided under

  7  s. 775.082 or s. 775.083.

  8         (3)  The term "gross receipts" as used herein does not

  9  include gross receipts of any person derived from:

10         (a)  The sale of natural gas to a public or private

11  utility, including a municipal corporation or rural electric

12  cooperative association, either for resale or for use as fuel

13  in the generation of electricity; or

14         (b)  The sale of electricity to a public or private

15  utility, including a municipal corporation or rural electric

16  cooperative association, for resale within the state, or as

17  part of an electrical interchange agreement or contract

18  between such utilities for the purpose of transferring more

19  economically generated power.; or

20         (c)  The sale of telecommunication services for resale

21  of telecommunication services wholly or partially within this

22  state, which includes, for purposes of this subsection, the

23  sale of telecommunication services to a person reselling such

24  telecommunication services by way of a prepaid calling

25  arrangement as defined in s. 212.05(1)(e)1.a.;

26

27  provided the person deriving gross receipts from such sale

28  demonstrates that a resale in fact occurred and complies with

29  the following requirements: A resale in this state must be in

30  strict compliance with the rules and regulations of the

31  Department of Revenue; and any person making a sale for resale

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  1  in this state which is not in strict compliance with the rules

  2  and regulations of the Department of Revenue shall be liable

  3  for and pay the tax. Any person making a sale for resale in

  4  this state may, through an informal protest provided for in s.

  5  213.21 and the rules of the Department of Revenue, provide the

  6  department with evidence of the exempt status of a sale.  The

  7  department shall adopt rules which provide that valid proof

  8  and documentation of the resale in this state by a person

  9  making the sale for resale in this state will be accepted by

10  the department when submitted during the protest period but

11  will not be accepted when submitted in any proceeding under

12  chapter 120 or any circuit court action instituted under

13  chapter 72.

14         (4)  Gross receipts subject to the tax imposed by this

15  section shall not include receipts from sales or leases of

16  telecommunications service for use in the conduct of a

17  telecommunications service for hire or otherwise for resale,

18  including resale of telecommunication services paid by using a

19  prepaid calling arrangement as defined in s. 212.05(1)(e)1.a.

20         (4)(5)  The tax imposed pursuant to this part relating

21  to the provision of any utility services at the option of the

22  person supplying the taxable services may be separately stated

23  as Florida gross receipts tax on the total amount of any bill,

24  invoice, or other tangible evidence of the provision of such

25  taxable services and may be added as a component part of the

26  total charge. Whenever a provider of taxable services elects

27  to separately state such tax as a component of the charge for

28  the provision of such taxable services, every person,

29  including all governmental units, shall remit the tax to the

30  person who provides such taxable services as a part of the

31  total bill, and the tax is a component part of the debt of the

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  1  purchaser to the person who provides such taxable services

  2  until paid and, if unpaid, is recoverable at law in the same

  3  manner as any other part of the charge for such taxable

  4  services.  For a utility, the decision to separately state any

  5  increase in the rate of tax imposed by this part which is

  6  effective after December 31, 1989, and the ability to recover

  7  the increased charge from the customer shall not be subject to

  8  regulatory approval.

  9         (5)(6)  The tax is imposed upon every person for the

10  privilege of conducting a utility or communications services

11  business, and each provider of the taxable services remains

12  fully and completely liable for the tax, even if the tax is

13  separately stated as a line item or component of the total

14  bill.

15         (6)(7)  Any person who provides such services and who

16  fails, neglects, or refuses to remit the tax imposed in this

17  part, either by himself or herself, or through agents or

18  employees, is liable for the tax and is guilty of a

19  misdemeanor of the first degree, punishable as provided in s.

20  775.082 or s. 775.083.

21         (7)(8)  Gross receipts subject to the tax imposed by

22  this section for the provision of electricity shall include

23  receipts from monthly customer charges or monthly customer

24  facility charges.

25         (9)(a)  If the sale of a taxable telecommunication

26  service also involves the sale of commercial or cable

27  television service exempt under the provision of s.

28  203.012(2)(b)2., the tax shall be applied to the value of the

29  taxable service when it is sold separately.

30         (b)  If the company does not offer this service

31  separately, the consideration paid shall be separately

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  1  identified and stated with respect to the taxable and exempt

  2  portions of the transaction as a condition of the exemption.

  3         (c)  The amounts identified as taxable in paragraph (b)

  4  shall not be less than the statewide average tariff rates set

  5  forth by the local exchange telecommunications companies in

  6  the tariffs filed with the Public Service Commission on

  7  January 1, 1995, and on January 1 of each year thereafter for

  8  the equivalent services subject to the provisions of this

  9  section.  The Public Service Commission shall publish the

10  statewide average tariff rates for commonly used services

11  annually, beginning on January 1, 1996.

12         (8)(10)  Notwithstanding the provisions of subsection

13  (4) (5) and s. 212.07(2), sums that were charged or billed as

14  taxes under this section and chapter 212 and that were

15  remitted to the state in full as taxes shall not be subject to

16  refund by the state or by the utility or other person that

17  which remitted the sums, when the amount remitted was not in

18  excess of the amount of tax imposed by chapter 212 and this

19  section.

20         Section 32.  Effective January 1, 2002, section

21  203.012, Florida Statutes, as amended by this act, is amended

22  to read:

23         203.012  Definitions.--As used in this chapter:

24         (1)  The term "access charge" or "right of access"

25  means any charge to any person for the right to use or for the

26  use of a telephone system which includes equipment,

27  facilities, or services to originate or terminate any of the

28  services defined in subsection (4), subsection (5), subsection

29  (6), or subsection (7) and which specifically includes

30  customer access line charges, which includes the gross amount

31  paid by subscribers and users in this state for access into

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  1  the intrastate or interstate interexchange network as

  2  authorized by the Federal Communications Commission or the

  3  Florida Public Service Commission.(2)(a)  Gross receipts from

  4  telecommunication services include the gross receipts for all

  5  telecommunication services of whatever nature, including, but

  6  not limited to, access charges and charges for right of

  7  access; residential and business 1-party, 2-party, and 4-party

  8  rotary charges; centrex charges; directory assistance charges;

  9  public telephone charges; touch-tone charges; emergency number

10  charges; private branch exchange message charges; public

11  announcement service charges; dial-it charges; local area data

12  transport charges; key lines charges; private branch exchange

13  trunk-flat rate charges; and directory listing charges other

14  than yellow-page classified listing charges.

15         (b)  Gross receipts for telecommunication services do

16  not include:

17         1.  Charges for customer premises equipment, including

18  such equipment that is leased or rented by the customer from

19  any source;

20         2.  Charges made to the public for commercial or cable

21  television, unless it is used for two-way communication;

22  however, if such two-way communication service is separately

23  billed, only the charges made for two-way communication

24  service will be subject to tax hereunder;

25         3.  Charges made by hotels and motels, which are

26  required under the provisions of s. 212.03 to collect

27  transient rentals tax from tenants and lessees, for local

28  telephone service or toll telephone service, when such charge

29  occurs incidental to the right of occupancy in such hotel or

30  motel;

31

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  1         4.  Connection and disconnection charges; move or

  2  change charges; suspension of service charges; and service

  3  order, number change, and restoration charges; or

  4         5.  Charges for services or items of equipment supplied

  5  by providers of the telecommunication services described in

  6  paragraph (5)(b), such as maintenance charges, equipment

  7  sales, or rental which are incidental to the provision of such

  8  telecommunication services, provided such charges are

  9  separately stated, itemized, or described on the bill,

10  invoice, or other tangible evidence of the provision of such

11  service; or

12         6.  Charges for telecommunication services which are

13  paid by using a prepaid calling arrangement as defined in s.

14  212.05(1)(e)1.a.

15         (3)  The term "local telephone service" means:

16         (a)  The access to a local telephone system, and the

17  privilege of telephonic-quality communication with

18  substantially all persons having telephone or radio telephone

19  stations constituting a part of such local telephone system;

20  or

21         (b)  Any facility or service provided in connection

22  with a service described in paragraph (a).

23

24  The term "local telephone service" does not include any

25  service which is a toll telephone service; private

26  communication service; cellular mobile telephone or

27  telecommunication service; specialized mobile radio, or pagers

28  and paging, service, including but not limited to "beepers"

29  and any other form of mobile and portable one-way or two-way

30  communication; or teletypewriter service.

31         (4)  The term "private communication service" means:

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  1         (a)  A communication service furnished to a subscriber

  2  or user that entitles the subscriber or user to exclusive or

  3  priority use of a communication channel or groups of channels,

  4  or to the use of an intercommunication system for the

  5  subscriber's stations, regardless of whether such channel,

  6  groups of channels, or intercommunication system may be

  7  connected through switching with a service described in

  8  subsection (3), subsection (6), or subsection (7);

  9         (b)  Switching capacity, extension lines, and stations,

10  or other associated services which are provided in connection

11  with, and which are necessary or unique to the use of,

12  channels or systems described in paragraph (a); or

13         (c)  The channel mileage which connects a telephone

14  station located outside a local telephone system area with a

15  central office in such local telephone system.

16         (5)  The term "telecommunication service" means:

17         (a)  Local telephone service, toll telephone service,

18  telegram or telegraph service, teletypewriter service, or

19  private communication service; or

20         (b)  Cellular mobile telephone or telecommunication

21  service; or specialized mobile radio, and pagers and paging,

22  service, including but not limited to "beepers" and any other

23  form of mobile and portable one-way or two-way communication;

24  but does not include services or equipment incidental to

25  telecommunication services enumerated in this paragraph such

26  as maintenance of customer premises equipment, whether owned

27  by the customer or not, or equipment sales or rental for which

28  charges are separately stated, itemized, or described on the

29  bill, invoice, or other tangible evidence of the provision of

30  such service.

31

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  1  The term "telecommunication service" does not include any

  2  Internet access service, electronic mail service, electronic

  3  bulletin board service, or similar on-line computer service.

  4         (6)  The term "teletypewriter service" means the access

  5  from a teletypewriter, telephone, or other data station of

  6  which such station is a part, and the privilege of

  7  intercommunication by such station with substantially all

  8  persons having teletypewriter, telephone, or other data

  9  stations constituting a part of the same teletypewriter

10  system, to which the subscriber or user is entitled upon

11  payment of a charge or charges, whether such charge or charges

12  are determined as a flat periodic amount, on the basis of

13  distance and elapsed transmission time, or some other method.

14  The term "teletypewriter service" does not include local

15  telephone service or toll telephone service.

16         (7)  The term "toll telephone service" means:

17         (a)  A telephonic-quality communication for which there

18  is a toll charge which varies in amount with the distance and

19  elapsed transmission time of each individual communication; or

20         (b)  A service which entitles the subscriber or user,

21  upon the payment of a periodic charge which is determined as a

22  flat amount or upon the basis of total elapsed transmission

23  time, to the privilege of an unlimited number of telephonic

24  communications to or from all or a substantial portion of the

25  persons having telephone or radio telephone stations in a

26  specified area which is outside the local telephone system

27  area in which the station provided with this service is

28  located.

29

30  The term "toll telephone service" includes interstate and

31  intrastate wide-area telephone service charges.

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  1         (8)  The term "interstate," as applied to

  2  telecommunication services, means originating in this state

  3  but not terminating in this state, or terminating in this

  4  state but not originating in this state.

  5         (1)(9)  The term "utility service" means electricity

  6  for light, heat, or power; and natural or manufactured gas for

  7  light, heat, or power; or telecommunication services.

  8         (2)(10)  The term "person" means any person as defined

  9  in s. 212.02.

10         Section 33.  Effective January 1, 2002, sections

11  203.013, 203.60, 203.61, 203.62, and 203.63, Florida Statutes,

12  are repealed.

13         Section 34.  Effective January 1, 2001, section

14  337.401, Florida Statutes, is amended to read:

15         337.401  Use of right-of-way for utilities subject to

16  regulation; permit; fees.--

17         (1)  The department and local governmental entities,

18  referred to in ss. 337.401-337.404 as the "authority," that

19  have jurisdiction and control of public roads or publicly

20  owned rail corridors are authorized to prescribe and enforce

21  reasonable rules or regulations with reference to the placing

22  and maintaining along, across, or on any road or publicly

23  owned rail corridors under their respective jurisdictions any

24  electric transmission, telephone, or telegraph lines; pole

25  lines; poles; railways; ditches; sewers; water, heat, or gas

26  mains; pipelines; fences; gasoline tanks and pumps; or other

27  structures hereinafter referred to as the "utility."

28         (2)  The authority may grant to any person who is a

29  resident of this state, or to any corporation which is

30  organized under the laws of this state or licensed to do

31  business within this state, the use of a right-of-way for the

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  1  utility in accordance with such rules or regulations as the

  2  authority may adopt.  No utility shall be installed, located,

  3  or relocated unless authorized by a written permit issued by

  4  the authority.  The permit shall require the permitholder to

  5  be responsible for any damage resulting from the issuance of

  6  such permit.  The authority may initiate injunctive

  7  proceedings as provided in s. 120.69 to enforce provisions of

  8  this subsection or any rule or order issued or entered into

  9  pursuant thereto.

10         (3)(a)  Because federal and state law require the

11  nondiscriminatory treatment of dealers of telecommunications

12  services and because of the desire to promote competition

13  among dealers of telecommunications services, it is the intent

14  of the Legislature that municipalities and counties treat

15  telecommunications companies in a nondiscriminatory and

16  competitively neutral manner when imposing rules governing the

17  placement or maintenance of telecommunications facilities in

18  the public roads or rights-of-way. Rules or regulations

19  imposed by a municipality or county relating to

20  telecommunications companies placing or maintaining

21  telecommunications facilities in its roads or rights-of-way

22  must be generally applicable to all telecommunications

23  companies and may not require a telecommunications company to

24  apply for or enter into an individual license, franchise, or

25  other agreement with the municipality or county as a condition

26  of placing or maintaining telecommunications facilities in its

27  roads or rights-of-way. In addition to other reasonable rules

28  that a municipality or county may adopt relating to the

29  placement or maintenance of telecommunications facilities in

30  its roads or rights-of-way under this subsection, a

31  municipality or county may require a telecommunications

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  1  company that places or seeks to place facilities in its roads

  2  or rights-of-way to register with the municipality or county

  3  and to provide the name of the registrant; the name, address,

  4  and telephone number of a contact person for the registrant;

  5  the number of the registrant's current certificate of

  6  authorization issued by the Florida Public Service Commission

  7  or the Federal Communications Commission; and proof of

  8  insurance or self-insuring status adequate to defend and cover

  9  claims.

10         (b)  Each municipality and county retains the authority

11  to regulate and manage municipal and county roads or

12  rights-of-way in exercising its police power. Any rules or

13  regulations adopted by a municipality or county which govern

14  the occupation of its roads or rights-of-way by

15  telecommunications companies must be related to the placement

16  or maintenance of facilities in such roads or rights-of-way,

17  must be reasonable and nondiscriminatory, and may include only

18  those matters necessary to manage the roads or rights-of-way

19  of the municipality or county.

20         (c)  After January 1, 2001, in addition to any other

21  notice requirements, a municipality must provide to the

22  Secretary of State, at least 10 days prior to consideration on

23  first reading, notice of a proposed ordinance governing a

24  telecommunications company placing or maintaining

25  telecommunications facilities in its roads or rights-of-way.

26  After January 1, 2001, in addition to any other notice

27  requirements, a county must provide to the Secretary of State,

28  at least 15 days prior to consideration at a public hearing,

29  notice of a proposed ordinance governing a telecommunications

30  company placing or maintaining telecommunications facilities

31  in its roads or rights-of-way. The notice required by this

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  1  paragraph must be published by the Secretary of State on a

  2  designated Internet website. The failure of a municipality or

  3  county to provide such notice does not render the ordinance

  4  invalid.

  5         (d)  If any municipality requires any

  6  telecommunications company to pay a fee or other consideration

  7  as a condition for granting permission to occupy municipal

  8  streets and rights-of-way for poles, wires, and other

  9  fixtures, such fee or consideration may not exceed 1 percent

10  of the gross receipts on recurring local service revenues for

11  services provided within the corporate limits of the

12  municipality by such telecommunications company. Included

13  within such 1-percent maximum fee or consideration are all

14  taxes, licenses, fees, in-kind contributions accepted pursuant

15  to paragraph (f) subsection (5), and other impositions except

16  ad valorem taxes and amounts for assessments for special

17  benefits, such as sidewalks, street pavings, and similar

18  improvements, and occupational license taxes levied or imposed

19  by a municipality upon the telecommunications company.  This

20  paragraph subsection shall not impair any franchise in

21  existence on July 1, 1985.

22         (e)(4)  A municipality may require by ordinance enter

23  into an agreement with any person providing telecommunication

24  services defined in s. 203.012(7) as a condition for granting

25  permission to occupy or use any city street, alley, viaduct,

26  elevated roadway, bridge, or other public way to pay. The

27  agreement shall permit the telecommunication service provider

28  to construct, operate, maintain, repair, rebuild, or replace a

29  telecommunications route within a municipal right-of-way.  The

30  agreement shall provide for a fee or other consideration

31  payable annually based on actual linear feet of any cable,

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  1  fiber optic, or other pathway that makes physical use of the

  2  municipal right-of-way.  In no event shall the fee or other

  3  consideration imposed pursuant to this subsection be less than

  4  $500 per linear mile of any cable, fiber optic, or other

  5  pathway that makes physical use of the municipal right-of-way.

  6  Any fee or other consideration imposed by this subsection in

  7  excess of $500 shall be applied in a nondiscriminatory manner

  8  and shall not exceed the sum of:

  9         1.(a)  Costs directly related to the inconvenience or

10  impairment solely caused by the disturbance of the municipal

11  right-of-way; and

12         2.(b)  The reasonable cost of the regulatory activity

13  of the municipality; and.

14         3.(c)  The proportionate share of cost of land for such

15  street, alley, or other public way attributable to utilization

16  of the right-of-way by a telecommunication service provider.

17

18  Furthermore, no telecommunication service provider shall be

19  required to pay more than one such fee or other consideration

20  annually for the construction, maintenance, operation, repair,

21  rebuilding, or replacement of a parallel telecommunications

22  route owned by it, or by a subsidiary under its direct

23  control, which makes use of the right-of-way of any

24  municipality enacting an ordinance pursuant to this paragraph

25  subsection.  The fee or other consideration imposed pursuant

26  to this paragraph subsection shall not apply in any manner to

27  any telecommunication service provider who provides

28  telecommunication services as defined in s. 203.012(3) for any

29  services provided by such service provider.  Any agreement

30  entered into pursuant to the authority of this paragraph

31  subsection prior to June 3, 1988, and into pursuant to the

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  1  authority of this paragraph subsection prior to June 3, 1988,

  2  and the fees or fee schedule in effect on that date shall

  3  remain in full force and effect until such agreement expires.

  4  Any ordinance enacted pursuant to this paragraph subsection

  5  prior to June 3, 1988, and the fees or fee schedule in effect

  6  on that date shall remain in full force and effect unless the

  7  ordinance is repealed by the municipality. Notwithstanding the

  8  language contained herein a municipality may reenact any

  9  ordinance which has an automatic expiration date provided the

10  ordinance does not increase the fees in effect in said

11  ordinance in violation of this section.

12         (f)(5)  Except as expressly allowed or authorized by

13  general law and except for the rights-of-way permit fees

14  subject to subsection (3), a municipality may not levy on a

15  telecommunications company a tax, fee, or other charge for

16  operating as a telecommunications company within the

17  jurisdiction of the municipality or which is in any way

18  related to using its roads or rights-of-way.  A municipality

19  may not allow a telecommunications company to pay a fee or

20  provide compensation in excess of the limits prescribed in

21  this section.  A municipality may not require or solicit

22  in-kind compensation in lieu of any fees imposed pursuant to

23  this section.  Nothing in this paragraph subsection shall

24  impair any ordinance or agreement in effect on May 22, 1998,

25  the effective date of this act which provides for or allows

26  in-kind compensation by a telecommunications company.

27         (g)(6)  A local governmental entity may not use its

28  authority over the placement of facilities in its roads and

29  rights-of-way as a basis for asserting or exercising

30  regulatory control over a telecommunications company regarding

31  matters within the exclusive jurisdiction of the Florida

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  1  Public Service Commission or the Federal Communications

  2  Commission, including, but not limited to, the operations,

  3  systems, qualifications, services, service quality, service

  4  territory, and prices of a telecommunications company.

  5         (h)(7)  A telecommunications company that has obtained

  6  permission to occupy the roads and rights-of-way of an

  7  incorporated municipality pursuant to s. 362.01 city or town

  8  or that is otherwise lawfully occupying the roads or

  9  rights-of-way of a municipality on the effective date of this

10  act shall not be required to obtain additional consent to

11  continue such lawful occupation of those roads or

12  rights-of-way; however, nothing in this paragraph subsection

13  shall be interpreted to limit the power of a municipality to

14  impose a fee or adopt or enforce reasonable rules or

15  regulations as provided in this section.

16         (i)(8)  Except as expressly provided in this subsection

17  section, this subsection section does not modify the authority

18  of local governmental entities to levy the tax authorized in

19  s. 166.231 or the duties of telecommunications companies under

20  ss. 337.402-337.404.  This section does not apply to building

21  permits, pole attachments, or private roads, private

22  easements, and private rights-of-way. Except as expressly

23  provided in this section, this section does not limit or

24  expand whatever powers counties may have relating to roads and

25  rights-of-way. Nothing in this section shall limit or expand

26  whatever authority a local government may have to impose any

27  fee pursuant to 47 U.S.C. ss. 542 and 573.

28         (j)(9)  As used in this section, the term

29  "telecommunications company" has the same meaning as defined

30  in s. 364.02.

31

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  1         (4)(10)  This section, except subsections (1) and, (2),

  2  and paragraph (3)(g) (6), does not apply to the provision of

  3  pay telephone service on public or municipal roads or

  4  rights-of-way.

  5         Section 35.  Effective January 1, 2002, section

  6  337.401, Florida Statutes, as amended by this act, is amended

  7  to read:

  8         337.401  Use of right-of-way for utilities subject to

  9  regulation; permit; fees.--

10         (1)  The department and local governmental entities,

11  referred to in ss. 337.401-337.404 as the "authority," that

12  have jurisdiction and control of public roads or publicly

13  owned rail corridors are authorized to prescribe and enforce

14  reasonable rules or regulations with reference to the placing

15  and maintaining along, across, or on any road or publicly

16  owned rail corridors under their respective jurisdictions any

17  electric transmission, telephone, or telegraph, or other

18  communications services lines; pole lines; poles; railways;

19  ditches; sewers; water, heat, or gas mains; pipelines; fences;

20  gasoline tanks and pumps; or other structures hereinafter

21  referred to as the "utility."

22         (2)  The authority may grant to any person who is a

23  resident of this state, or to any corporation which is

24  organized under the laws of this state or licensed to do

25  business within this state, the use of a right-of-way for the

26  utility in accordance with such rules or regulations as the

27  authority may adopt.  No utility shall be installed, located,

28  or relocated unless authorized by a written permit issued by

29  the authority.  The permit shall require the permitholder to

30  be responsible for any damage resulting from the issuance of

31  such permit.  The authority may initiate injunctive

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  1  proceedings as provided in s. 120.69 to enforce provisions of

  2  this subsection or any rule or order issued or entered into

  3  pursuant thereto.

  4         (3)(a)  Because of the unique circumstances applicable

  5  to dealer of communications services, including, but not

  6  limited to, the circumstances described in paragraph (e) and

  7  the fact that federal and state law require the

  8  nondiscriminatory treatment of dealers of telecommunications

  9  services, and because of the desire to promote competition

10  among dealers of communications telecommunications services,

11  it is the intent of the Legislature that municipalities and

12  counties treat dealer of communications services

13  telecommunications companies in a nondiscriminatory and

14  competitively neutral manner when imposing rules governing the

15  placement or maintenance of communications telecommunications

16  facilities in the public roads or rights-of-way. Rules or

17  regulations imposed by a municipality or county relating to

18  dealers of communications services telecommunications

19  companies placing or maintaining communications

20  telecommunications facilities in its roads or rights-of-way

21  must be generally applicable to all dealers of communications

22  services telecommunications companies and may not require a

23  dealer of communications services telecommunications company

24  to apply for or enter into an individual license, franchise,

25  or other agreement with the municipality or county as a

26  condition of placing or maintaining communications

27  telecommunications facilities in its roads or rights-of-way.

28  In addition to other reasonable rules that a municipality or

29  county may adopt relating to the placement or maintenance of

30  communications telecommunications facilities in its roads or

31  rights-of-way under this subsection, a municipality or county

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  1  may require a dealer of communications services

  2  telecommunications company that places or seeks to place

  3  facilities in its roads or rights-of-way to register with the

  4  municipality or county and to provide the name of the

  5  registrant; the name, address, and telephone number of a

  6  contact person for the registrant; the number of the

  7  registrant's current certificate of authorization issued by

  8  the Florida Public Service Commission or the Federal

  9  Communications Commission; and proof of insurance or

10  self-insuring status adequate to defend and cover claims.

11         (b)  Each municipality and county retains the authority

12  to regulate and manage municipal and county roads or

13  rights-of-way in exercising its police power. Any rules or

14  regulations adopted by a municipality or county which govern

15  the occupation of its roads or rights-of-way by dealers of

16  communications services telecommunications companies must be

17  related to the placement or maintenance of facilities in such

18  roads or rights-of-way, must be reasonable and

19  nondiscriminatory, and may include only those matters

20  necessary to manage the roads or rights-of-way of the

21  municipality or county.

22         (c)1.  Each municipality and charter county shall make

23  a selection under either sub-subparagraph a. or

24  sub-subparagraph b. and must inform the Department of Revenue

25  of the selection by certified mail by October 1, 2001.

26         a.(I)  Require and collect permit fees from any dealers

27  of communications services that use or occupy municipal or

28  county roads or rights-of-way. All fees permitted under this

29  sub-subparagraph must be reasonable and commensurate with the

30  direct and actual cost of the regulatory activity, including

31  issuing and processing permits, plan reviews, physical

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  1  inspection, and direct administrative costs; must be

  2  demonstrable; and must be equitable among users of the roads

  3  or rights-of-way. A fee permitted under this sub-subparagraph

  4  may not be offset against the tax imposed under chapter 202;

  5  include the costs of roads or rights-of-way acquisition or

  6  roads or rights-of-way rental; include any general

  7  administrative, management, or maintenance costs of the roads

  8  or rights-of-way; or be based on a percentage of the value

  9  associated with the work to be performed in the roads or

10  rights-of-way. In an action to recover amounts due for a fee

11  not permitted under this sub-subparagraph, the prevailing

12  party may recover court costs and attorney's fees at trial and

13  on appeal. A fee levied by a municipality or charter county

14  may not exceed $100.

15         (II)  To ensure competitive neutrality among dealers of

16  communications services, any municipality or charter county

17  that elects to exercise its authority to require and collect

18  permit fees under this sub-subparagraph must decrease by    

19  percent the total rate for the local portion of the

20  communications services tax, as computed under s. 202.20 for

21  that municipality or charter county.

22         b.  Not require and collect permit fees from any dealer

23  of communications services that uses or occupies municipal or

24  charter county roads or rights-of-way for the provision of

25  communications services; however, each municipality or charter

26  county that elects to operate under this sub-subparagraph

27  retains all authority to establish rules and regulations for

28  dealers of communications services to use or occupy roads or

29  rights-of-way as provided in this section. If a municipality

30  or charter county elects to operate under this

31  sub-subparagraph, the total rate for the local communications

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  1  services tax as computed under s. 202.20 for that municipality

  2  or charter county may be increased by ordinance to an amount

  3  not to exceed     percent, to replace the revenue the

  4  municipality or charter county would otherwise have received

  5  from permit fees for long distance, cable, and wireless

  6  dealers of communications services.

  7         2.  Each noncharter county shall make a selection under

  8  either sub-subparagraph a. or sub-subparagraph b. and shall

  9  inform the Department of Revenue of the selection by certified

10  mail by October 1, 2001.

11         a.  Require and collect permit fees from any dealers of

12  communications services that use or occupy municipal or county

13  roads or rights-of-way. All fees permitted under this

14  sub-subparagraph must be reasonable and commensurate with the

15  direct and actual cost of the regulatory activity, including

16  issuing and processing permits, plan reviews, physical

17  inspection, and direct administrative costs; must be

18  demonstrable; and must be equitable among users of the roads

19  or rights-of-way. A fee permitted under this sub-subparagraph

20  may not be offset against the tax imposed under chapter 202;

21  include the costs of roads or rights-of-way acquisition or

22  roads or rights-of-way rental; include any general

23  administrative, management, or maintenance costs of the roads

24  or rights-of-way; or be based on a percentage of the value

25  associated with the work to be performed in the roads or

26  rights-of-way. In an action to recover amounts due for a fee

27  not permitted under this sub-subparagraph, the prevailing

28  party may recover court costs and attorney's fees at trial and

29  on appeal. A fee levied by a noncharter county may not exceed

30  $100.

31

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  1         b.  Not require and collect permit fees from any dealer

  2  of communications services that uses or occupies noncharter

  3  county roads or rights-of-way for the provision of

  4  communications services; however, each noncharter county that

  5  elects to operate under this sub-subparagraph shall retain all

  6  authority to establish rules and regulations for dealers of

  7  communications services to use or occupy roads or

  8  rights-of-way as provided in this section. If a noncharter

  9  county elects to operate under this sub-subparagraph, the

10  total rate for local communications services tax as computed

11  under s. 202.20 for that noncharter county may be increased by

12  ordinance to an amount not to exceed     percent, to replace

13  the revenue the noncharter county would otherwise have

14  received from permit fees for dealers of communications

15  services.

16         (d)(c)  After January 1, 2001, in addition to any other

17  notice requirements, a municipality must provide to the

18  Secretary of State, at least 10 days prior to consideration on

19  first reading, notice of a proposed ordinance governing a

20  dealer of communications services telecommunications company

21  placing or maintaining communications telecommunications

22  facilities in its roads or rights-of-way. After January 1,

23  2001, in addition to any other notice requirements, a county

24  must provide to the Secretary of State, at least 15 days prior

25  to consideration at a public hearing, notice of a proposed

26  ordinance governing a dealer of communications services

27  telecommunications company placing or maintaining

28  communications telecommunications facilities in its roads or

29  rights-of-way. The notice required by this paragraph must be

30  published by the Secretary of State on a designated Internet

31

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  1  Web site. The failure of a municipality or county to provide

  2  such notice does not render the ordinance invalid.

  3         (e)  The authority of municipalities and counties to

  4  require franchise fees from dealers of communications

  5  services, with respect to the provision of communications

  6  services, is specifically preempted by the state, except as

  7  otherwise provided in paragraph (f), because of unique

  8  circumstances applicable to dealers of communications services

  9  when compared to other utilities occupying municipal or county

10  roads or rights-of-way. Dealers of communications services may

11  provide similar services in a manner that requires the

12  placement of facilities in municipal or county roads or

13  rights-of-way or in a manner that does not require the

14  placement of facilities in such roads or rights-of-way.

15  Although similar communications services may be provided by

16  different means, the state desires to treat dealers of

17  communications services in a nondiscriminatory manner and to

18  have the taxes, franchise fees, and other fees paid by dealers

19  of communications services be competitively neutral.

20  Municipalities and counties retain all existing authority to

21  collect franchise fees from users or occupants of municipal or

22  county roads or rights-of-way other than dealers of

23  communications services, and the provisions of this section

24  shall have no effect upon this authority. The provisions of

25  this subsection do not restrict the authority of

26  municipalities or counties or other governmental entities to

27  receive reasonable rental fees based on fair market value for

28  the use of public lands and buildings on property outside the

29  public roads or rights-of-way for the placement of

30  communications antennas and towers.

31

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  1         (f)  A municipality or county may request and negotiate

  2  for in-kind compensation, capital contributions, and community

  3  benefits only from dealers of cable service pursuant to

  4  federal law. Each municipality and county retains authority to

  5  negotiate all terms and conditions of a cable service

  6  franchise allowed by law except those terms and conditions

  7  related to franchise fees and the definition of gross revenues

  8  or other definitions or methodologies related to the payment

  9  or assessment of franchise fees on dealers of cable services.

10  Nothing in this section shall impair any ordinance or

11  agreement in effect on the effective date of this act which

12  provides for or allows in-kind compensation, capital

13  contributions, or community benefits as permitted by federal

14  law by a dealer of cable services, including the ability of

15  dealers of cable service to recover such expenses pursuant to

16  federal law.

17         (d)  If any municipality requires any

18  telecommunications company to pay a fee or other consideration

19  as a condition for granting permission to occupy municipal

20  streets and rights-of-way for poles, wires, and other

21  fixtures, such fee or consideration may not exceed 1 percent

22  of the gross receipts on recurring local service revenues for

23  services provided within the corporate limits of the

24  municipality by such telecommunications company. Included

25  within such 1-percent maximum fee or consideration are all

26  taxes, licenses, fees, in-kind contributions accepted pursuant

27  to paragraph (f), and other impositions except ad valorem

28  taxes and amounts for assessments for special benefits, such

29  as sidewalks, street pavings, and similar improvements, and

30  occupational license taxes levied or imposed by a municipality

31

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  1  upon the telecommunications company.  This paragraph shall not

  2  impair any franchise in existence on July 1, 1985.

  3         (e)  A municipality may require any person providing

  4  telecommunication services defined in s. 203.012(7) as a

  5  condition for granting permission to occupy or use any city

  6  street, alley, viaduct, elevated roadway, bridge, or other

  7  public way to pay a fee or other consideration payable

  8  annually based on actual linear feet of any cable, fiber

  9  optic, or other pathway that makes physical use of the

10  municipal right-of-way.  In no event shall the fee or other

11  consideration imposed pursuant to this subsection be less than

12  $500 per linear mile of any cable, fiber optic, or other

13  pathway that makes physical use of the municipal right-of-way.

14  Any fee or other consideration imposed by this subsection in

15  excess of $500 shall be applied in a nondiscriminatory manner

16  and shall not exceed the sum of:

17         1.  Costs directly related to the inconvenience or

18  impairment solely caused by the disturbance of the municipal

19  right-of-way;

20         2.  The reasonable cost of the regulatory activity of

21  the municipality; and

22         3.  The proportionate share of cost of land for such

23  street, alley, or other public way attributable to utilization

24  of the right-of-way by a telecommunication service provider.

25

26  Furthermore, no telecommunication service provider shall be

27  required to pay more than one such fee or other consideration

28  annually for the construction, maintenance, operation, repair,

29  rebuilding, or replacement of a parallel telecommunications

30  route owned by it, or by a subsidiary under its direct

31  control, which makes use of the right-of-way of any

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  1  municipality enacting an ordinance pursuant to this paragraph.

  2  The fee or other consideration imposed pursuant to this

  3  paragraph shall not apply in any manner to any

  4  telecommunication service provider who provides

  5  telecommunication services as defined in s. 203.012(3) for any

  6  services provided by such service provider.  Any agreement

  7  entered into pursuant to the authority of this paragraph prior

  8  to June 3, 1988, and into pursuant to the authority of this

  9  paragraph prior to June 3, 1988, and the fees or fee schedule

10  in effect on that date shall remain in full force and effect

11  until such agreement expires. Any ordinance enacted pursuant

12  to this paragraph prior to June 3, 1988, and the fees or fee

13  schedule in effect on that date shall remain in full force and

14  effect unless the ordinance is repealed by the municipality.

15  Notwithstanding the language contained herein a municipality

16  may reenact any ordinance which has an automatic expiration

17  date provided the ordinance does not increase the fees in

18  effect in said ordinance in violation of this section.

19         (g)(f)  Except as expressly allowed or authorized by

20  general law and except for the rights-of-way permit fees

21  subject to paragraph (c) subsection (3), a municipality or

22  county may not levy on a dealer of communications services

23  telecommunications company a tax, fee, or other charge or

24  imposition for operating as a dealer of communications

25  services telecommunications company within the jurisdiction of

26  the municipality or county which is in any way related to

27  using its roads or rights-of-way. A municipality may not allow

28  a telecommunications company to pay a fee or provide

29  compensation in excess of the limits prescribed in this

30  section. A municipality may not require or solicit in-kind

31  compensation except as otherwise provided in paragraph (f) in

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  1  lieu of any fees imposed pursuant to this section. Nothing in

  2  this paragraph shall impair any ordinance or agreement in

  3  effect on May 22, 1998, which provides for or allows in-kind

  4  compensation by a telecommunications company.

  5         (h)(g)  A municipality or county local governmental

  6  entity may not use its authority over the placement of

  7  facilities in its roads and rights-of-way as a basis for

  8  asserting or exercising regulatory control over a dealer of

  9  communications services telecommunications company regarding

10  matters within the exclusive jurisdiction of the Florida

11  Public Service Commission or the Federal Communications

12  Commission, including, but not limited to, the operations,

13  systems, qualifications, services, service quality, service

14  territory, and prices of a dealer of communications services

15  telecommunications company.

16         (i)(h)  A dealer of communications services

17  telecommunications company that has obtained permission to

18  occupy the roads or and rights-of-way of an incorporated

19  municipality pursuant to s. 362.01 or that is otherwise

20  lawfully occupying the roads or rights-of-way of a

21  municipality on the effective date of this act shall not be

22  required to obtain consent to continue such lawful occupation

23  of those roads or rights-of-way; however, nothing in this

24  paragraph shall be interpreted to limit the power of a

25  municipality to impose a fee or adopt or enforce reasonable

26  rules or regulations as provided in this section.

27         (j)(i)  Except as expressly provided in this

28  subsection, this subsection does not modify the authority of

29  municipalities and counties local governmental entities to

30  levy the tax authorized in chapter 202 s. 166.231 or the

31  duties of dealers of communications services

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  1  telecommunications companies under ss. 337.402-337.404.  This

  2  section does not apply to building permits, pole attachments,

  3  or private roads, private easements, and private

  4  rights-of-way. Except as expressly provided in this section,

  5  this section does not limit or expand whatever powers counties

  6  may have relating to roads and rights-of-way. Nothing in this

  7  section shall limit or expand whatever authority a local

  8  government may have to impose any fee pursuant to 47 U.S.C.

  9  ss. 542 and 573.

10         (4)(j)  As used in this section, the terms

11  "communications services" and "cable services" have term

12  "telecommunications company" has the same meanings ascribed in

13  chapter 202 meaning as defined in s. 364.02.

14         (5)(4)  This section, except subsections (1) and (2)

15  and paragraph (3)(h) (3)(g), does not apply to the provision

16  of pay telephone service on public, or municipal, or county

17  roads or rights-of-way.

18         Section 36.  Effective January 1, 2002, paragraph (a)

19  of subsection (1) of section 72.011, Florida Statutes, is

20  amended to read:

21         72.011  Jurisdiction of circuit courts in specific tax

22  matters; administrative hearings and appeals; time for

23  commencing action; parties; deposits.--

24         (1)(a)  A taxpayer may contest the legality of any

25  assessment or denial of refund of tax, fee, surcharge, permit,

26  interest, or penalty provided for under s. 125.0104, s.

27  125.0108, chapter 198, chapter 199, chapter 201, chapter 202,

28  chapter 203, chapter 206, chapter 207, chapter 210, chapter

29  211, chapter 212, chapter 213, chapter 220, chapter 221, s.

30  370.07(3), chapter 376, s. 403.717, s. 403.718, s. 403.7185,

31  s. 403.7195, s. 538.09, s. 538.25, chapter 550, chapter 561,

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  1  chapter 562, chapter 563, chapter 564, chapter 565, chapter

  2  624, or s. 681.117 by filing an action in circuit court; or,

  3  alternatively, the taxpayer may file a petition under the

  4  applicable provisions of chapter 120. However, once an action

  5  has been initiated under s. 120.56, s. 120.565, s. 120.569, s.

  6  120.57, or s. 120.80(14)(b), no action relating to the same

  7  subject matter may be filed by the taxpayer in circuit court,

  8  and judicial review shall be exclusively limited to appellate

  9  review pursuant to s. 120.68; and once an action has been

10  initiated in circuit court, no action may be brought under

11  chapter 120.

12         Section 37.  Effective January 1, 2002, section 213.05,

13  Florida Statutes, is amended to read:

14         213.05  Department of Revenue; control and

15  administration of revenue laws.--The Department of Revenue

16  shall have only those responsibilities for ad valorem taxation

17  specified to the department in chapter 192, taxation, general

18  provisions; chapter 193, assessments; chapter 194,

19  administrative and judicial review of property taxes; chapter

20  195, property assessment administration and finance; chapter

21  196, exemption; chapter 197, tax collections, sales, and

22  liens; chapter 199, intangible personal property taxes; and

23  chapter 200, determination of millage. The Department of

24  Revenue shall have the responsibility of regulating,

25  controlling, and administering all revenue laws and performing

26  all duties as provided in s. 125.0104, the Local Option

27  Tourist Development Act; s. 125.0108, tourist impact tax;

28  chapter 198, estate taxes; chapter 201, excise tax on

29  documents; chapter 202, communications services tax; chapter

30  203, gross receipts taxes; chapter 206, motor and other fuel

31  taxes; chapter 211, tax on production of oil and gas and

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  1  severance of solid minerals; chapter 212, tax on sales, use,

  2  and other transactions; chapter 220, income tax code; chapter

  3  221, emergency excise tax; ss. 336.021 and 336.025, taxes on

  4  motor fuel and special fuel; s. 370.07(3), Apalachicola Bay

  5  oyster surcharge; s. 376.11, pollutant spill prevention and

  6  control; s. 403.718, waste tire fees; s. 403.7185, lead-acid

  7  battery fees; s. 403.7195, waste newsprint disposal fees; s.

  8  538.09, registration of secondhand dealers; s. 538.25,

  9  registration of secondary metals recyclers; s. 624.4621, group

10  self-insurer's fund premium tax; s. 624.5091, retaliatory tax;

11  s. 624.475, commercial self-insurance fund premium tax; ss.

12  624.509-624.511, insurance code: administration and general

13  provisions; s. 624.515, State Fire Marshal regulatory

14  assessment; s. 627.357, medical malpractice self-insurance

15  premium tax; s. 629.5011, reciprocal insurers premium tax; and

16  s. 681.117, motor vehicle warranty enforcement.

17         Section 38.  Effective January 1, 2002, subsection (1)

18  of section 213.053, Florida Statutes, is amended, and

19  paragraph (r) is added to subsection (7) of that section, to

20  read:

21         213.053  Confidentiality and information sharing.--

22         (1)  The provisions of this section apply to s.

23  125.0104, county government; s. 125.0108, tourist impact tax;

24  chapter 175, municipal firefighters' pension trust funds;

25  chapter 185, municipal police officers' retirement trust

26  funds; chapter 198, estate taxes; chapter 199, intangible

27  personal property taxes; chapter 201, excise tax on documents;

28  chapter 202, communications services tax; chapter 203, gross

29  receipts taxes; chapter 211, tax on severance and production

30  of minerals; chapter 212, tax on sales, use, and other

31  transactions; chapter 220, income tax code; chapter 221,

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  1  emergency excise tax; s. 252.372, emergency management,

  2  preparedness, and assistance surcharge; s. 370.07(3),

  3  Apalachicola Bay oyster surcharge; chapter 376, pollutant

  4  spill prevention and control; s. 403.718, waste tire fees; s.

  5  403.7185, lead-acid battery fees; s. 403.7195, waste newsprint

  6  disposal fees; s. 538.09, registration of secondhand dealers;

  7  s. 538.25, registration of secondary metals recyclers; ss.

  8  624.501 and 624.509-624.515, insurance code; s. 681.117, motor

  9  vehicle warranty enforcement; and s. 896.102, reports of

10  financial transactions in trade or business.

11         (7)  Notwithstanding any other provision of this

12  section, the department may provide:

13         (r)  Information relative to chapter 202 to each local

14  government that imposes a tax pursuant to s. 202.19 in the

15  conduct of its official duties as specified in chapter 202.

16  Data provided under this paragraph may not be disclosed to any

17  other person or entity other than a person or entity directly

18  responsible for administering the tax. Such data may not be

19  used for any purpose other than for administering the tax and

20  assisting the department's administration of chapter 202.

21

22  Disclosure of information under this subsection shall be

23  pursuant to a written agreement between the executive director

24  and the agency.  Such agencies, governmental or

25  nongovernmental, shall be bound by the same requirements of

26  confidentiality as the Department of Revenue.  Breach of

27  confidentiality is a misdemeanor of the first degree,

28  punishable as provided by s. 775.082 or s. 775.083.

29         Section 39.  Effective January 1, 2002, and applicable

30  to communications services reflected on bills dated on or

31  after that date, subsection (9) of section 166.231, Florida

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  1  Statutes, as amended by this act, is repealed, and subsections

  2  (7) and (10) of that section are amended to read:

  3         166.231  Municipalities; public service tax.--

  4         (7)  The tax authorized hereunder shall be collected by

  5  the seller of the taxable item from the purchaser at the time

  6  of the payment for such service.  The seller shall remit the

  7  taxes collected to the municipality in the manner prescribed

  8  by ordinance, except that remittance of taxes by sellers of

  9  telecommunication services shall be governed by paragraph

10  (9)(f). Except as otherwise provided in ss. 166.233 and

11  166.234, the seller shall be liable for taxes that are due and

12  not remitted to the municipality. This shall not bar the

13  seller from recovering such taxes from purchasers; however,

14  the universities in the State University System shall not be

15  deemed a seller of any item otherwise taxable hereunder when

16  such item is provided to university residences incidental to

17  the provision of educational services.

18         (10)  A purchaser who claims an exemption under

19  subsection (4) or, subsection (5), or paragraph (9)(e) shall

20  certify to the seller that he or she qualifies for the

21  exemption, which certification may encompass all purchases

22  after a specified date or other multiple purchases. For

23  purchases made under paragraph (9)(e) which are exempted, upon

24  the presentation of a certificate, from the tax imposed by

25  chapter 212, the certification required by this subsection may

26  be satisfied by presentation of a certificate that satisfies

27  the requirements of chapter 212. A seller accepting the

28  certification required by this subsection is relieved of the

29  obligation to collect and remit tax; however, a governmental

30  body that is exempt from the tax authorized by this section

31  shall not be required to furnish such certification, and a

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  1  seller is not required to collect tax from such an exempt

  2  governmental body.

  3         Section 40.  Effective January 1, 2002, subsection (2)

  4  of section 166.233, Florida Statutes, is amended to read:

  5         166.233  Public service tax; effective dates;

  6  procedures for informing sellers of tax levies and related

  7  information.--

  8         (2)(a)  A tax levy must be adopted by ordinance, and

  9  the effective date of every levy or repeal thereof must be a

10  subsequent January 1, April 1, July 1, or October 1. A

11  municipality shall notify the department of the adoption or

12  repeal of a levy at least 120 days before the effective date

13  thereof. Such notification must be furnished on a form

14  prescribed by the department and must specify the services

15  taxed under the authority of s. 166.231 or s. 166.232,

16  including any election under s. 166.231(9)(a), the rate of tax

17  applied to each service, the effective date of the levy or

18  repeal thereof, and the name, mailing address, and telephone

19  number of a person designated by the municipality to respond

20  to inquiries concerning the tax. The department shall maintain

21  this information for the purpose of responding to inquiries

22  with respect thereto, and any person may, in writing, request

23  such information from the department. For purposes of this

24  section, a response to such a person is timely if in writing

25  and dated no later than 20 days after the receipt of the

26  request. The department shall charge such persons a fee to

27  recover the actual cost of maintaining and furnishing such

28  information. The department has no liability for any loss of

29  or decrease in revenue by reason of any error, omission, or

30  untimely action that results in the nonpayment of the tax

31  imposed under s. 166.231 or s. 166.232. The provisions of this

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  1  paragraph which prescribe effective dates and require

  2  municipalities to furnish notifications to the department do

  3  not apply to taxes levied on service, other than

  4  telecommunication service, provided by the municipality

  5  levying the tax or by a separate utility authority, board, or

  6  commission of the municipality.

  7         (b)  The department may contract with a private entity

  8  to maintain and furnish the information described in paragraph

  9  (a); however, the department shall establish the fee charged

10  to persons requesting that information.

11         Section 41.  Effective January 1, 2002, subsection (6)

12  of section 212.20, Florida Statutes, is amended to read:

13         212.20  Funds collected, disposition; additional powers

14  of department; operational expense; refund of taxes

15  adjudicated unconstitutionally collected.--

16         (6)  Distribution of all proceeds under this chapter

17  and s. 202.18(1)(b) and (2)(a)2. shall be as follows:

18         (a)  Proceeds from the convention development taxes

19  authorized under s. 212.0305 shall be reallocated to the

20  Convention Development Tax Clearing Trust Fund.

21         (b)  Proceeds from discretionary sales surtaxes imposed

22  pursuant to ss. 212.054 and 212.055 shall be reallocated to

23  the Discretionary Sales Surtax Clearing Trust Fund.

24         (c)  Proceeds from the tax imposed pursuant to s.

25  212.06(5)(a)2. shall be reallocated to the Mail Order Sales

26  Tax Clearing Trust Fund.

27         (d)  Proceeds from the fee imposed pursuant to s.

28  212.18(5) shall be deposited in the Solid Waste Management

29  Clearing Trust Fund, which is hereby created to be used by the

30  department, and shall be subsequently transferred to the State

31

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  1  Treasurer to be deposited into the Solid Waste Management

  2  Trust Fund.

  3         (e)  Proceeds from the fees imposed under ss.

  4  212.05(1)(i)3. and 212.18(3) shall remain with the General

  5  Revenue Fund.

  6         (f)  The proceeds of all other taxes and fees imposed

  7  pursuant to this chapter or remitted pursuant to s.

  8  202.18(1)(b) and (2)(a)2. shall be distributed as follows:

  9         1.  In any fiscal year, the greater of $500 million,

10  minus an amount equal to 4.6 percent of the proceeds of the

11  taxes collected pursuant to chapter 201, or 5 percent of all

12  other taxes and fees imposed pursuant to this chapter or

13  remitted pursuant to s. 202.18(1)(b) and (2)(a)2. shall be

14  deposited in monthly installments into the General Revenue

15  Fund.

16         2.  Two-tenths of one percent shall be transferred to

17  the Solid Waste Management Trust Fund.

18         3.  After the distribution under subparagraphs 1. and

19  2., 9.653 percent of the amount remitted by a sales tax dealer

20  located within a participating county pursuant to s. 218.61

21  shall be transferred into the Local Government Half-cent Sales

22  Tax Clearing Trust Fund.

23         4.  After the distribution under subparagraphs 1., 2.,

24  and 3., 0.054 percent shall be transferred to the Local

25  Government Half-cent Sales Tax Clearing Trust Fund and

26  distributed pursuant to s. 218.65.

27         5.  Of the remaining proceeds:

28         a.  Beginning July 1, 1992, $166,667 shall be

29  distributed monthly by the department to each applicant that

30  has been certified as a "facility for a new professional

31  sports franchise" or a "facility for a retained professional

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  1  sports franchise" pursuant to s. 288.1162 and $41,667 shall be

  2  distributed monthly by the department to each applicant that

  3  has been certified as a "new spring training franchise

  4  facility" pursuant to s. 288.1162. Distributions shall begin

  5  60 days following such certification and shall continue for 30

  6  years. Nothing contained herein shall be construed to allow an

  7  applicant certified pursuant to s. 288.1162 to receive more in

  8  distributions than actually expended by the applicant for the

  9  public purposes provided for in s. 288.1162(7). However, a

10  certified applicant shall receive distributions up to the

11  maximum amount allowable and undistributed under this section

12  for additional renovations and improvements to the facility

13  for the franchise without additional certification.

14         b.  Beginning 30 days after notice by the Office of

15  Tourism, Trade, and Economic Development to the Department of

16  Revenue that an applicant has been certified as the

17  professional golf hall of fame pursuant to s. 288.1168 and is

18  open to the public, $166,667 shall be distributed monthly, for

19  up to 300 months, to the applicant.

20         c.  Beginning 30 days after notice by the Department of

21  Commerce to the Department of Revenue that the applicant has

22  been certified as the International Game Fish Association

23  World Center facility pursuant to s. 288.1169, and the

24  facility is open to the public, $83,333 shall be distributed

25  monthly, for up to 180 months, to the applicant.  This

26  distribution is subject to reduction pursuant to s. 288.1169.

27         6.  All other proceeds shall remain with the General

28  Revenue Fund.

29         Section 42.  Effective January 1, 2002, section 125.42,

30  Florida Statutes, is amended to read:

31

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  1         125.42  Water, sewage, gas, power, telephone, other

  2  utility, and television lines along county roads and

  3  highways.--

  4         (1)  The board of county commissioners, with respect to

  5  property located without the corporate limits of any

  6  municipality, is authorized to grant a license to any person

  7  or private corporation to construct, maintain, repair,

  8  operate, and remove lines for the transmission of water,

  9  sewage, gas, power, telephone, other public utilities, and

10  television under, on, over, across and along any county

11  highway or any public road or highway acquired by the county

12  or public by purchase, gift, devise, dedication, or

13  prescription. However, the board of county commissioners shall

14  include in any instrument granting such license adequate

15  provisions:

16         (a)  To prevent the creation of any obstructions or

17  conditions which are or may become dangerous to the traveling

18  public;

19         (b)  To require the licensee to repair any damage or

20  injury to the road or highway by reason of the exercise of the

21  privileges granted in any instrument creating such license and

22  to repair the road or highway promptly, restoring it to a

23  condition at least equal to that which existed immediately

24  prior to the infliction of such damage or injury;

25         (c)  Whereby the licensee shall hold the board of

26  county commissioners and members thereof harmless from the

27  payment of any compensation or damages resulting from the

28  exercise of the privileges granted in any instrument creating

29  the license; and

30         (d)  As may be reasonably necessary, for the protection

31  of the county and the public.

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  1         (2)  A license may be granted in perpetuity or for a

  2  term of years, subject, however, to termination by the

  3  licensor, in the event the road or highway is closed,

  4  abandoned, vacated, discontinued, or reconstructed.

  5         (3)  The board of county commissioners is authorized to

  6  grant exclusive or nonexclusive licenses for the purposes

  7  stated herein for television.

  8         (4)  This law is intended to provide an additional

  9  method for the granting of licenses and shall not be construed

10  to repeal any law now in effect relating to the same subject.

11         (5)  In the event of widening, repair, or

12  reconstruction of any such road, the licensee shall move or

13  remove such water, sewage, gas, power, telephone, and other

14  utility lines and television lines at no cost to the county.

15         Section 43.  Paragraphs (a), (e), and (f) of subsection

16  (9) of section 166.231, Florida Statutes, are amended to read:

17         166.231  Municipalities; public service tax.--

18         (9)  A municipality may levy a tax on the purchase of

19  telecommunication services as defined in s. 203.012 as

20  follows:

21         (a)1.  Only upon purchases within the municipality of

22  local telephone service as defined in s. 203.012(3) at a rate

23  not to exceed 10 percent of the monthly recurring customer

24  service charges, excluding public telephone charges collected

25  on site, access charges, and any customer access line charges

26  paid to a local telephone company; or

27         2.  Only upon purchases within the municipality of

28  telecommunications service that originates and terminates in

29  this state at a rate not to exceed 7 percent of the total

30  amount charged for any telecommunications service provided

31  within the municipality or, if the location of the

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  1  telecommunications service provided cannot be determined as

  2  part of the billing process, the total amount billed for such

  3  telecommunications service to a telephone or telephone number,

  4  a telecommunications number or device, a service address, or a

  5  customers' billing address located within the municipality,

  6  excluding charges for telecommunication services that are paid

  7  by using a prepaid calling arrangement as defined in s.

  8  212.05(1)(e)1.a., public telephone charges collected on site,

  9  charges for any foreign exchange service or any private line

10  service except when such services are used or sold as a

11  substitute for any telephone company switched service or

12  dedicated facility by which a telephone company provides a

13  communication path, access charges, and any customer access

14  line charges paid to a local telephone company. However,

15  telecommunications service as defined in s. 203.012(5)(b)

16  shall be taxed only on the monthly recurring customer service

17  charges excluding variable usage charges.

18         (e)  Purchases of local telephone service or other

19  telecommunications service for use in the conduct of a

20  telecommunications service for hire or otherwise for resale,

21  including resale of telecommunication services paid by using a

22  prepaid calling arrangement as defined in s. 212.05(1)(e)1.a.,

23  are exempt from the tax imposed by this subsection.

24         (f)  A seller of services which are subject to the tax

25  imposed by a municipality under this subsection shall file a

26  return with the municipality each month. The form of the

27  return shall be determined by the seller, and the return shall

28  be deemed sufficient if it identifies the name and address of

29  the seller, the period of the return, the amount collected

30  from the sale of taxable services, any collection allowance

31  taken, the amount of tax remitted with the return, and the

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  1  name and telephone number of a person authorized by the seller

  2  to respond to inquiries from municipalities concerning the

  3  seller's administration of the tax. A municipality may not

  4  require any return or payment of public service tax other than

  5  on a date returns and payments of tax are required under

  6  chapter 212. However, a municipality may grant an extension of

  7  the due date for a return or payment upon written request from

  8  the seller. The deduction authorized by paragraph (b) shall

  9  not be allowed in the event of an untimely return, unless the

10  seller has in writing requested and been granted an extension

11  of time for filing such return. Extensions of time shall be

12  granted if reasonable cause is shown, whether requested before

13  or after the due date of the return. Notwithstanding any other

14  provision of law, the public service tax shall not be

15  collected at point of sale on prepaid calling arrangements.

16         Section 44.  Effective July 1, 2000, all taxes that

17  have been collected pursuant to section 166.231(9)(f), Florida

18  Statutes, at the point of sale on prepaid calling arrangements

19  prior to July 1, 2000, must be remitted, and taxes that have

20  been collected at the point of sale on prepaid calling

21  arrangements and remitted before July 1, 2000, are not subject

22  to refund. Any taxes that were not collected pursuant to s.

23  166.231(9)(f) prior to July 1, 2000, at the point of sale on

24  prepaid calling arrangements need not be paid and are

25  forgiven.

26         Section 45.  Subsections (3) and (4) of section 203.01,

27  Florida Statutes, are amended to read:

28         203.01  Tax on gross receipts for utility services.--

29         (3)  The term "gross receipts" as used herein does not

30  include gross receipts of any person derived from:

31

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  1         (a)  The sale of natural gas to a public or private

  2  utility, including a municipal corporation or rural electric

  3  cooperative association, either for resale or for use as fuel

  4  in the generation of electricity;

  5         (b)  The sale of electricity to a public or private

  6  utility, including a municipal corporation or rural electric

  7  cooperative association, for resale within the state, or as

  8  part of an electrical interchange agreement or contract

  9  between such utilities for the purpose of transferring more

10  economically generated power; or

11         (c)  The sale of telecommunication services for resale

12  of telecommunication services wholly or partially within this

13  state, which includes, for purposes of this subsection, the

14  sale of telecommunication services to a person reselling such

15  telecommunication services by way of a prepaid calling

16  arrangement as defined in s. 212.05(1)(e)1.a.;

17

18  provided the person deriving gross receipts from such sale

19  demonstrates that a resale in fact occurred and complies with

20  the following requirements: A resale in this state must be in

21  strict compliance with the rules and regulations of the

22  Department of Revenue; and any person making a sale for resale

23  in this state which is not in strict compliance with the rules

24  and regulations of the Department of Revenue shall be liable

25  for and pay the tax. Any person making a sale for resale in

26  this state may, through an informal protest provided for in s.

27  213.21 and the rules of the Department of Revenue, provide the

28  department with evidence of the exempt status of a sale.  The

29  department shall adopt rules which provide that valid proof

30  and documentation of the resale in this state by a person

31  making the sale for resale in this state will be accepted by

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  1  the department when submitted during the protest period but

  2  will not be accepted when submitted in any proceeding under

  3  chapter 120 or any circuit court action instituted under

  4  chapter 72.

  5         (4)  Gross receipts subject to the tax imposed by this

  6  section shall not include receipts from sales or leases of

  7  telecommunications service for use in the conduct of a

  8  telecommunications service for hire or otherwise for resale,

  9  including resale of telecommunication services paid by using a

10  prepaid calling arrangement as defined in s. 212.05(1)(e)1.a.

11         Section 46.  Paragraph (b) of subsection (2) of section

12  203.012, Florida Statutes, is amended to read:

13         203.012  Definitions.--As used in this chapter:

14         (2)

15         (b)  Gross receipts for telecommunication services do

16  not include:

17         1.  Charges for customer premises equipment, including

18  such equipment that is leased or rented by the customer from

19  any source;

20         2.  Charges made to the public for commercial or cable

21  television, unless it is used for two-way communication;

22  however, if such two-way communication service is separately

23  billed, only the charges made for two-way communication

24  service will be subject to tax hereunder;

25         3.  Charges made by hotels and motels, which are

26  required under the provisions of s. 212.03 to collect

27  transient rentals tax from tenants and lessees, for local

28  telephone service or toll telephone service, when such charge

29  occurs incidental to the right of occupancy in such hotel or

30  motel;

31

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  1         4.  Connection and disconnection charges; move or

  2  change charges; suspension of service charges; and service

  3  order, number change, and restoration charges; or

  4         5.  Charges for services or items of equipment supplied

  5  by providers of the telecommunication services described in

  6  paragraph (5)(b), such as maintenance charges, equipment

  7  sales, or rental which are incidental to the provision of such

  8  telecommunication services, provided such charges are

  9  separately stated, itemized, or described on the bill,

10  invoice, or other tangible evidence of the provision of such

11  service; or.

12         6.  Charges for telecommunication services which are

13  paid by using a prepaid calling arrangement as defined in s.

14  212.05(1)(e)1.a.

15         Section 47.  Paragraph (b) of subsection (2) of section

16  212.054, Florida Statutes, is amended to read:

17         212.054  Discretionary sales surtax; limitations,

18  administration, and collection.--

19         (2)

20         (b)  However:

21         1.  The tax on any sales amount above $5,000 on any

22  item of tangible personal property and on long-distance

23  telephone service shall not be subject to the surtax.

24  However, charges for prepaid calling arrangements, as defined

25  in s. 212.05(1)(e)1.a., shall be subject to the surtax. For

26  purposes of administering the $5,000 limitation on an item of

27  tangible personal property, if two or more taxable items of

28  tangible personal property are sold to the same purchaser at

29  the same time and, under generally accepted business practice

30  or industry standards or usage, are normally sold in bulk or

31  are items that, when assembled, comprise a working unit or

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  1  part of a working unit, such items must be considered a single

  2  item for purposes of the $5,000 limitation when supported by a

  3  charge ticket, sales slip, invoice, or other tangible evidence

  4  of a single sale or rental. The limitation provided in this

  5  subparagraph does not apply to the sale of any other service.

  6         2.  In the case of utility, telecommunication, or

  7  television system program services billed on or after the

  8  effective date of any such surtax, the entire amount of the

  9  charge tax for utility, telecommunication, or television

10  system program services shall be subject to the surtax.  In

11  the case of utility, telecommunication, or television system

12  program services billed after the last day the surtax is in

13  effect, the entire amount of the charge tax on said items

14  shall not be subject to the surtax.

15         3.  In the case of written contracts which are signed

16  prior to the effective date of any such surtax for the

17  construction of improvements to real property or for

18  remodeling of existing structures, the surtax shall be paid by

19  the contractor responsible for the performance of the

20  contract.  However, the contractor may apply for one refund of

21  any such surtax paid on materials necessary for the completion

22  of the contract.  Any application for refund shall be made no

23  later than 15 months following initial imposition of the

24  surtax in that county.  The application for refund shall be in

25  the manner prescribed by the department by rule.  A complete

26  application shall include proof of the written contract and of

27  payment of the surtax.  The application shall contain a sworn

28  statement, signed by the applicant or its representative,

29  attesting to the validity of the application.  The department

30  shall, within 30 days after approval of a complete

31  application, certify to the county information necessary for

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  1  issuance of a refund to the applicant. Counties are hereby

  2  authorized to issue refunds for this purpose and shall set

  3  aside from the proceeds of the surtax a sum sufficient to pay

  4  any refund lawfully due.  Any person who fraudulently obtains

  5  or attempts to obtain a refund pursuant to this subparagraph,

  6  in addition to being liable for repayment of any refund

  7  fraudulently obtained plus a mandatory penalty of 100 percent

  8  of the refund, is guilty of a felony of the third degree,

  9  punishable as provided in s. 775.082, s. 775.083, or s.

10  775.084.

11         4.  In the case of any vessel, railroad, or motor

12  vehicle common carrier entitled to partial exemption from tax

13  imposed under this chapter pursuant to s. 212.08(4), (8), or

14  (9), the basis for imposition of surtax shall be the same as

15  provided in s. 212.08 and the ratio shall be applied each

16  month to total purchases in this state of property qualified

17  for proration which is delivered or sold in the taxing county

18  to establish the portion used and consumed in intracounty

19  movement and subject to surtax.

20         Section 48.  Paragraph (e) of subsection (1) of section

21  212.05, Florida Statutes, is amended to read:

22         212.05  Sales, storage, use tax.--It is hereby declared

23  to be the legislative intent that every person is exercising a

24  taxable privilege who engages in the business of selling

25  tangible personal property at retail in this state, including

26  the business of making mail order sales, or who rents or

27  furnishes any of the things or services taxable under this

28  chapter, or who stores for use or consumption in this state

29  any item or article of tangible personal property as defined

30  herein and who leases or rents such property within the state.

31

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  1         (1)  For the exercise of such privilege, a tax is

  2  levied on each taxable transaction or incident, which tax is

  3  due and payable as follows:

  4         (e)1.  At the rate of 6 percent on charges for:

  5         a.  All telegraph messages and long-distance telephone

  6  calls beginning and terminating in this state,

  7  telecommunication service as defined in s. 203.012, and those

  8  services described in s. 203.012(2)(a), except that the tax

  9  rate for charges for telecommunication service other than

10  charges for prepaid calling arrangements is 7 percent. The tax

11  on charges for prepaid calling arrangements calls made with a

12  prepaid telephone calling card shall be collected at the time

13  of sale and remitted by the selling dealer selling or

14  recharging a prepaid telephone card.

15         (I)  "Prepaid calling arrangement" means the separately

16  stated retail sale by advance payment of communications

17  services that consist exclusively of telephone calls

18  originated by using an access number, authorization code, or

19  other means that may be manually, electronically, or otherwise

20  entered and that are sold in predetermined units or dollars

21  whose number declines with use in a known amount. A prepaid

22  telephone card or authorization number means the right to

23  exclusively make telephone calls that must be paid for in

24  advance and that enable the origination of calls using an

25  access number, prepaid mobile account, or authorization code,

26  whether manually or electronically dialed.

27         (II)  If the sale or recharge of the prepaid telephone

28  calling arrangement card does not take place at the dealer's

29  place of business, it shall be deemed to take place at the

30  customer's shipping address or, if no item is shipped, at the

31

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  1  customer's address or the location associated with the

  2  customer's mobile telephone number.

  3         (III)  The sale or recharge of a prepaid calling

  4  arrangement shall be treated as a sale of tangible personal

  5  property for purposes of this chapter, whether or not a

  6  tangible item evidencing such arrangement is furnished to the

  7  purchaser, and such sale within this state phone card

  8  constitutes property in this state and subjects the selling

  9  dealer to the jurisdiction of this state for purposes of this

10  subsection. Notwithstanding any other provision of this

11  sub-sub-subparagraph, the sale of telecommunication services

12  to a person who furnishes telecommunication services pursuant

13  to a prepaid calling arrangement is deemed a sale for resale,

14  and a dealer selling telecommunication services to such a

15  person shall accept a resale certificate in lieu of the tax,

16  in accordance with rules of the department.

17         b.  Any television system program service.

18         c.  The installation of telecommunication and

19  telegraphic equipment.

20         d.  Electrical power or energy, except that the tax

21  rate for charges for electrical power or energy is 7 percent.

22         2.  For purposes of this chapter, "television system

23  program service" means the transmitting, by any means, of any

24  audio or video signal to a subscriber for other than

25  retransmission, or the installing, connecting, reconnecting,

26  disconnecting, moving, or changing of any equipment related to

27  such service.  For purposes of this chapter, the term

28  "telecommunication service" does not include local service

29  provided through a pay telephone. The provisions of s.

30  212.17(3), regarding credit for tax paid on charges

31  subsequently found to be worthless, shall be equally

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  1  applicable to any tax paid under the provisions of this

  2  section on charges for prepaid calling arrangements,

  3  telecommunication or telegraph services, or electric power

  4  subsequently found to be uncollectible. The word "charges" in

  5  this paragraph does not include any excise or similar tax

  6  levied by the Federal Government, any political subdivision of

  7  the state, or any municipality upon the purchase, or sale, or

  8  recharge of prepaid calling arrangements or upon the purchase

  9  or sale of telecommunication, television system program, or

10  telegraph service or electric power, which tax is collected by

11  the seller from the purchaser.

12         3.  Telegraph messages and telecommunication services

13  which originate or terminate in this state, other than

14  interstate private communication services, and are billed to a

15  customer, telephone number, or device located within this

16  state are taxable under this paragraph.  Interstate private

17  communication services are taxable under this paragraph as

18  follows:

19         a.  One hundred percent of the charge imposed at each

20  channel termination point within this state;

21         b.  One hundred percent of the charge imposed for the

22  total channel mileage between each channel termination point

23  within this state; and

24         c.  The portion of the interstate interoffice channel

25  mileage charge as determined by multiplying said charge times

26  a fraction, the numerator of which is the air miles between

27  the last channel termination point in this state and the

28  vertical and horizontal coordinates, 7856 and 1756,

29  respectively, and the denominator of which is the air miles

30  between the last channel termination point in this state and

31  the first channel termination point outside this state.  The

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  1  denominator of this fraction shall be adjusted, if necessary,

  2  by adding the numerator of said fraction to similarly

  3  determined air miles in the state in which the other channel

  4  termination point is located, so that the summation of the

  5  apportionment factor for this state and the apportionment

  6  factor for the other state is not greater than one, to ensure

  7  that no more than 100 percent of the interstate interoffice

  8  channel mileage charge can be taxed by this state and another

  9  state.

10         4.  The tax imposed pursuant to this paragraph shall

11  not exceed $50,000 per calendar year on charges to any person

12  for interstate telecommunications services defined in s.

13  203.012(4) and (7)(b), if the majority of such services used

14  by such person are for communications originating outside of

15  this state and terminating in this state.  This exemption

16  shall only be granted to holders of a direct pay permit issued

17  pursuant to this subparagraph.  No refunds shall be given for

18  taxes paid prior to receiving a direct pay permit. Upon

19  application, the department may issue a direct pay permit to

20  the purchaser of telecommunications services authorizing such

21  purchaser to pay tax on such services directly to the

22  department. Any vendor furnishing telecommunications services

23  to the holder of a valid direct pay permit shall be relieved

24  of the obligation to collect and remit the tax on such

25  service. Tax payments and returns pursuant to a direct pay

26  permit shall be monthly. For purposes of this subparagraph,

27  the term "person" shall be limited to a single legal entity

28  and shall not be construed as meaning a group or combination

29  of affiliated entities or entities controlled by one person or

30  group of persons.

31

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  1         5.  If the sale of a television system program service,

  2  as defined in this paragraph, also involves the sale of an

  3  item exempt under s. 212.08(7)(j), the tax shall be applied to

  4  the value of the taxable service when it is sold separately.

  5  If the company does not offer this service separately, the

  6  consideration paid shall be separately identified and stated

  7  with respect to the taxable and exempt portions of the

  8  transaction as a condition of the exemption, except that the

  9  amount identified as taxable shall not be less than the cost

10  of the service.

11         Section 49.  Effective July 1, 2000, all taxes that

12  have been collected pursuant to section 212.05(1)(e), Florida

13  Statutes, at the point of sale on prepaid calling arrangements

14  before July 1, 2000, must be remitted, and taxes that have

15  been collected at the point of sale on prepaid calling

16  arrangements and remitted before July 1, 2000, are not subject

17  to refund. Any taxes that were not collected pursuant to s.

18  212.05(1)(e) before July 1, 2000, at point of sale on prepaid

19  calling arrangements need not be paid and are forgiven.

20         Section 50.  Effective January 1, 2002, and applicable

21  to communications services reflected on bills dated on or

22  after that date, paragraph (e) of subsection (1) of section

23  212.05, Florida Statutes, as amended by this act, is amended

24  to read:

25         212.05  Sales, storage, use tax.--It is hereby declared

26  to be the legislative intent that every person is exercising a

27  taxable privilege who engages in the business of selling

28  tangible personal property at retail in this state, including

29  the business of making mail order sales, or who rents or

30  furnishes any of the things or services taxable under this

31  chapter, or who stores for use or consumption in this state

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  1  any item or article of tangible personal property as defined

  2  herein and who leases or rents such property within the state.

  3         (1)  For the exercise of such privilege, a tax is

  4  levied on each taxable transaction or incident, which tax is

  5  due and payable as follows:

  6         (e)1.  At the rate of 6 percent on charges for:

  7         a.  All telegraph messages and long-distance telephone

  8  calls beginning and terminating in this state,

  9  telecommunication service as defined in s. 203.012, and those

10  services described in s. 203.012(2)(a), except that the tax

11  rate for charges for telecommunication service other than

12  charges for prepaid calling arrangements is 7 percent. The tax

13  on charges for prepaid calling arrangements shall be collected

14  at the time of sale and remitted by the selling dealer.

15         (I)  "Prepaid calling arrangement" means the separately

16  stated retail sale by advance payment of communications

17  services that consist exclusively of telephone calls

18  originated by using an access number, authorization code, or

19  other means that may be manually, electronically, or otherwise

20  entered and that are sold in predetermined units or dollars

21  whose number declines with use in a known amount. A prepaid

22  calling arrangement means the separately stated retail sale by

23  advance payment of a communication service exclusively

24  consisting of the right to originate telephone service

25  otherwise subject to a toll charge. The right must be accessed

26  by use of an access number, authorization code, or other means

27  that is not preprogrammed into a customer device originating

28  the service, other than a prepaid telephone card, but which

29  may be manually, electronically, or otherwise entered. The

30  sale must not be for resale and must be made in dollars and

31  must entitle the purchaser to use the telephone service for a

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  1  predetermined unit of time that declines with use in a known

  2  amount.

  3         (II)  If the sale or recharge of the prepaid calling

  4  arrangement does not take place at the dealer's place of

  5  business, it shall be deemed to take place at the customer's

  6  shipping address or, if no item is shipped, at the customer's

  7  address or the location associated with the customer's mobile

  8  telephone number.

  9         (III)  The sale or recharge of a prepaid calling

10  arrangement shall be treated as a sale of tangible personal

11  property for purposes of this chapter, whether or not a

12  tangible item evidencing such arrangement is furnished to the

13  purchaser, and such sale within this state subjects the

14  selling dealer to the jurisdiction of this state for purposes

15  of this subsection. Notwithstanding any other provision of

16  this sub-sub-subparagraph, the sale of telecommunication

17  services to a person who furnishes telecommunication services

18  pursuant to a prepaid calling arrangement is deemed a sale for

19  resale, and a dealer selling telecommunication services to

20  such a person shall accept a resale certificate in lieu of the

21  tax, in accordance with rules of the department.

22         b.  Any television system program service.

23         b.c.  The installation of telecommunication and

24  telegraphic equipment.

25         c.d.  Electrical power or energy, except that the tax

26  rate for charges for electrical power or energy is 7 percent.

27         2.  For purposes of this chapter, "television system

28  program service" means the transmitting, by any means, of any

29  audio or video signal to a subscriber for other than

30  retransmission, or the installing, connecting, reconnecting,

31  disconnecting, moving, or changing of any equipment related to

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  1  such service.  For purposes of this chapter, the term

  2  "telecommunication service" does not include local service

  3  provided through a pay telephone. The provisions of s.

  4  212.17(3), regarding credit for tax paid on charges

  5  subsequently found to be worthless, shall be equally

  6  applicable to any tax paid under the provisions of this

  7  section on charges for prepaid calling arrangements,

  8  telecommunication or telegraph services, or electric power

  9  subsequently found to be uncollectible. The word "charges" in

10  this paragraph does not include any excise or similar tax

11  levied by the Federal Government, any political subdivision of

12  the state, or any municipality upon the purchase, sale, or

13  recharge of prepaid calling arrangements or upon the purchase

14  or sale of telecommunication, television system program, or

15  telegraph service or electric power, which tax is collected by

16  the seller from the purchaser.

17         3.  Telegraph messages and telecommunication services

18  which originate or terminate in this state, other than

19  interstate private communication services, and are billed to a

20  customer, telephone number, or device located within this

21  state are taxable under this paragraph.  Interstate private

22  communication services are taxable under this paragraph as

23  follows:

24         a.  One hundred percent of the charge imposed at each

25  channel termination point within this state;

26         b.  One hundred percent of the charge imposed for the

27  total channel mileage between each channel termination point

28  within this state; and

29         c.  The portion of the interstate interoffice channel

30  mileage charge as determined by multiplying said charge times

31  a fraction, the numerator of which is the air miles between

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  1  the last channel termination point in this state and the

  2  vertical and horizontal coordinates, 7856 and 1756,

  3  respectively, and the denominator of which is the air miles

  4  between the last channel termination point in this state and

  5  the first channel termination point outside this state.  The

  6  denominator of this fraction shall be adjusted, if necessary,

  7  by adding the numerator of said fraction to similarly

  8  determined air miles in the state in which the other channel

  9  termination point is located, so that the summation of the

10  apportionment factor for this state and the apportionment

11  factor for the other state is not greater than one, to ensure

12  that no more than 100 percent of the interstate interoffice

13  channel mileage charge can be taxed by this state and another

14  state.

15         4.  The tax imposed pursuant to this paragraph shall

16  not exceed $50,000 per calendar year on charges to any person

17  for interstate telecommunications services defined in s.

18  203.012(4) and (7)(b), if the majority of such services used

19  by such person are for communications originating outside of

20  this state and terminating in this state.  This exemption

21  shall only be granted to holders of a direct pay permit issued

22  pursuant to this subparagraph.  No refunds shall be given for

23  taxes paid prior to receiving a direct pay permit. Upon

24  application, the department may issue a direct pay permit to

25  the purchaser of telecommunications services authorizing such

26  purchaser to pay tax on such services directly to the

27  department. Any vendor furnishing telecommunications services

28  to the holder of a valid direct pay permit shall be relieved

29  of the obligation to collect and remit the tax on such

30  service. Tax payments and returns pursuant to a direct pay

31  permit shall be monthly. For purposes of this subparagraph,

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  1  the term "person" shall be limited to a single legal entity

  2  and shall not be construed as meaning a group or combination

  3  of affiliated entities or entities controlled by one person or

  4  group of persons.

  5         5.  If the sale of a television system program service,

  6  as defined in this paragraph, also involves the sale of an

  7  item exempt under s. 212.08(7)(j), the tax shall be applied to

  8  the value of the taxable service when it is sold separately.

  9  If the company does not offer this service separately, the

10  consideration paid shall be separately identified and stated

11  with respect to the taxable and exempt portions of the

12  transaction as a condition of the exemption, except that the

13  amount identified as taxable shall not be less than the cost

14  of the service.

15         Section 51.  Effective January 1, 2002, paragraph (b)

16  of subsection (2) and paragraph (c) of subsection (3) of

17  section 212.054, Florida Statutes, as amended by this act, are

18  amended to read:

19         212.054  Discretionary sales surtax; limitations,

20  administration, and collection.--

21         (2)

22         (b)  However:

23         1.  The sales amount above $5,000 on any item of

24  tangible personal property and on long-distance telephone

25  service shall not be subject to the surtax. However, charges

26  for prepaid calling arrangements, as defined in s.

27  212.05(1)(e)1.a., shall be subject to the surtax. For purposes

28  of administering the $5,000 limitation on an item of tangible

29  personal property, if two or more taxable items of tangible

30  personal property are sold to the same purchaser at the same

31  time and, under generally accepted business practice or

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  1  industry standards or usage, are normally sold in bulk or are

  2  items that, when assembled, comprise a working unit or part of

  3  a working unit, such items must be considered a single item

  4  for purposes of the $5,000 limitation when supported by a

  5  charge ticket, sales slip, invoice, or other tangible evidence

  6  of a single sale or rental. The limitation provided in this

  7  subparagraph does not apply to the sale of any other service.

  8         2.  In the case of utility, telecommunication, or

  9  television system program services billed on or after the

10  effective date of any such surtax, the entire amount of the

11  charge for utility, telecommunication, or television system

12  program services shall be subject to the surtax. In the case

13  of utility, telecommunication, or television system program

14  services billed after the last day the surtax is in effect,

15  the entire amount of the charge on said items shall not be

16  subject to the surtax. The term "utility service," as used in

17  this section, does not include any communications services as

18  defined in chapter 202.

19         3.  In the case of written contracts which are signed

20  prior to the effective date of any such surtax for the

21  construction of improvements to real property or for

22  remodeling of existing structures, the surtax shall be paid by

23  the contractor responsible for the performance of the

24  contract.  However, the contractor may apply for one refund of

25  any such surtax paid on materials necessary for the completion

26  of the contract.  Any application for refund shall be made no

27  later than 15 months following initial imposition of the

28  surtax in that county.  The application for refund shall be in

29  the manner prescribed by the department by rule.  A complete

30  application shall include proof of the written contract and of

31  payment of the surtax.  The application shall contain a sworn

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  1  statement, signed by the applicant or its representative,

  2  attesting to the validity of the application.  The department

  3  shall, within 30 days after approval of a complete

  4  application, certify to the county information necessary for

  5  issuance of a refund to the applicant. Counties are hereby

  6  authorized to issue refunds for this purpose and shall set

  7  aside from the proceeds of the surtax a sum sufficient to pay

  8  any refund lawfully due.  Any person who fraudulently obtains

  9  or attempts to obtain a refund pursuant to this subparagraph,

10  in addition to being liable for repayment of any refund

11  fraudulently obtained plus a mandatory penalty of 100 percent

12  of the refund, is guilty of a felony of the third degree,

13  punishable as provided in s. 775.082, s. 775.083, or s.

14  775.084.

15         4.  In the case of any vessel, railroad, or motor

16  vehicle common carrier entitled to partial exemption from tax

17  imposed under this chapter pursuant to s. 212.08(4), (8), or

18  (9), the basis for imposition of surtax shall be the same as

19  provided in s. 212.08 and the ratio shall be applied each

20  month to total purchases in this state of property qualified

21  for proration which is delivered or sold in the taxing county

22  to establish the portion used and consumed in intracounty

23  movement and subject to surtax.

24         (3)  For the purpose of this section, a transaction

25  shall be deemed to have occurred in a county imposing the

26  surtax when:

27         (c)  The consumer of utility or television system

28  program services is located in the county, or the

29  telecommunication services are provided to a location within

30  the county.

31

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  1         Section 52.  Effective July 1, 2000, subsection (1) of

  2  section 212.031, Florida Statutes, is amended to read:

  3         212.031  Lease or rental of or license in real

  4  property.--

  5         (1)(a)  It is declared to be the legislative intent

  6  that every person is exercising a taxable privilege who

  7  engages in the business of renting, leasing, letting, or

  8  granting a license for the use of any real property unless

  9  such property is:

10         1.  Assessed as agricultural property under s. 193.461.

11         2.  Used exclusively as dwelling units.

12         3.  Property subject to tax on parking, docking, or

13  storage spaces under s. 212.03(6).

14         4.  Recreational property or the common elements of a

15  condominium when subject to a lease between the developer or

16  owner thereof and the condominium association in its own right

17  or as agent for the owners of individual condominium units or

18  the owners of individual condominium units. However, only the

19  lease payments on such property shall be exempt from the tax

20  imposed by this chapter, and any other use made by the owner

21  or the condominium association shall be fully taxable under

22  this chapter.

23         5.  A public or private street or right-of-way and

24  poles, conduits, fixtures, and similar improvements located on

25  such streets or rights-of-way, occupied or used by a utility

26  or franchised cable television company for utility or

27  communications or television purposes. For purposes of this

28  subparagraph, the term "utility" means any person providing

29  utility services as defined in s. 203.012. This exception also

30  applies to property, excluding buildings, wherever located, on

31  which the following are placed: towers, antennas, cables,

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  1  adjacent accessory structures, or adjacent accessory

  2  equipment, not including switching equipment, used in the

  3  provision of cellular, enhanced specialized mobile radio, or

  4  personal communications services as defined in s. 202.11 are

  5  placed. For purposes of this chapter, towers used in the

  6  provision of mobile communications services, as defined in s.

  7  202.11, are considered to be fixtures.

  8         6.  A public street or road which is used for

  9  transportation purposes.

10         7.  Property used at an airport exclusively for the

11  purpose of aircraft landing or aircraft taxiing or property

12  used by an airline for the purpose of loading or unloading

13  passengers or property onto or from aircraft or for fueling

14  aircraft.

15         8.a.  Property used at a port authority, as defined in

16  s. 315.02(2), exclusively for the purpose of oceangoing

17  vessels or tugs docking, or such vessels mooring on property

18  used by a port authority for the purpose of loading or

19  unloading passengers or cargo onto or from such a vessel, or

20  property used at a port authority for fueling such vessels, or

21  to the extent that the amount paid for the use of any property

22  at the port is based on the charge for the amount of tonnage

23  actually imported or exported through the port by a tenant.

24         b.  The amount charged for the use of any property at

25  the port in excess of the amount charged for tonnage actually

26  imported or exported shall remain subject to tax except as

27  provided in sub-subparagraph a.

28         9.  Property used as an integral part of the

29  performance of qualified production services.  As used in this

30  subparagraph, the term "qualified production services" means

31  any activity or service performed directly in connection with

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  1  the production of a qualified motion picture, as defined in s.

  2  212.06(1)(b), and includes:

  3         a.  Photography, sound and recording, casting, location

  4  managing and scouting, shooting, creation of special and

  5  optical effects, animation, adaptation (language, media,

  6  electronic, or otherwise), technological modifications,

  7  computer graphics, set and stage support (such as

  8  electricians, lighting designers and operators, greensmen,

  9  prop managers and assistants, and grips), wardrobe (design,

10  preparation, and management), hair and makeup (design,

11  production, and application), performing (such as acting,

12  dancing, and playing), designing and executing stunts,

13  coaching, consulting, writing, scoring, composing,

14  choreographing, script supervising, directing, producing,

15  transmitting dailies, dubbing, mixing, editing, cutting,

16  looping, printing, processing, duplicating, storing, and

17  distributing;

18         b.  The design, planning, engineering, construction,

19  alteration, repair, and maintenance of real or personal

20  property including stages, sets, props, models, paintings, and

21  facilities principally required for the performance of those

22  services listed in sub-subparagraph a.; and

23         c.  Property management services directly related to

24  property used in connection with the services described in

25  sub-subparagraphs a. and b.

26         10.  Leased, subleased, licensed, or rented to a person

27  providing food and drink concessionaire services within the

28  premises of a convention hall, exhibition hall, auditorium,

29  stadium, theater, arena, civic center, performing arts center,

30  recreational facility, or any business operated under a permit

31  issued pursuant to chapter 550.  A person providing retail

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  1  concessionaire services involving the sale of food and drink

  2  or other tangible personal property within the premises of an

  3  airport shall be subject to tax on the rental of real property

  4  used for that purpose, but shall not be subject to the tax on

  5  any license to use the property.  For purposes of this

  6  subparagraph, the term "sale" shall not include the leasing of

  7  tangible personal property.

  8         11.  Property occupied pursuant to an instrument

  9  calling for payments which the department has declared, in a

10  Technical Assistance Advisement issued on or before March 15,

11  1993, to be nontaxable pursuant to rule 12A-1.070(19)(c),

12  Florida Administrative Code; provided that this subparagraph

13  shall only apply to property occupied by the same person

14  before and after the execution of the subject instrument and

15  only to those payments made pursuant to such instrument,

16  exclusive of renewals and extensions thereof occurring after

17  March 15, 1993.

18         (b)  When a lease involves multiple use of real

19  property wherein a part of the real property is subject to the

20  tax herein, and a part of the property would be excluded from

21  the tax under subparagraph (a)1., subparagraph (a)2., or

22  subparagraph (a)3., or subparagraph (a)5., the department

23  shall determine, from the lease or license and such other

24  information as may be available, that portion of the total

25  rental charge which is exempt from the tax imposed by this

26  section. The portion of the premises leased or rented by a

27  for-profit entity providing a residential facility for the

28  aged will be exempt on the basis of a pro rata portion

29  calculated by combining the square footage of the areas used

30  for residential units by the aged and for the care of such

31  residents and dividing the resultant sum by the total square

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  1  footage of the rented premises. For purposes of this section,

  2  the term "residential facility for the aged" means a facility

  3  that is licensed or certified in whole or in part under

  4  chapter 400 or chapter 651; or that provides residences to the

  5  elderly and is financed by a mortgage or loan made or insured

  6  by the United States Department of Housing and Urban

  7  Development under s. 202, s. 202 with a s. 8 subsidy, s.

  8  221(d)(3) or (4), s. 232, or s. 236 of the National Housing

  9  Act; or other such similar facility that provides residences

10  primarily for the elderly.

11         (c)  For the exercise of such privilege, as tax is

12  levied in an amount equal to 6 percent of and on the total

13  rent or license fee charged for such real property by the

14  person charging or collecting the rental or license fee. The

15  total rent or license fee charged for such real property shall

16  include payments for the granting of a privilege to use or

17  occupy real property for any purpose and shall include base

18  rent, percentage rents, or similar charges. Such charges shall

19  be included in the total rent or license fee subject to tax

20  under this section whether or not they can be attributed to

21  the ability of the lessor's or licensor's property as used or

22  operated to attract customers. Payments for intrinsically

23  valuable personal property such as franchises, trademarks,

24  service marks, logos, or patents are not subject to tax under

25  this section.  In the case of a contractual arrangement that

26  provides for both payments taxable as total rent or license

27  fee and payments not subject to tax, the tax shall be based on

28  a reasonable allocation of such payments and shall not apply

29  to that portion which is for the nontaxable payments.

30         (d)  When the rental or license fee of any such real

31  property is paid by way of property, goods, wares,

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  1  merchandise, services, or other thing of value, the tax shall

  2  be at the rate of 6 percent of the value of the property,

  3  goods, wares, merchandise, services, or other thing of value.

  4         Section 53.  The taxes imposed by sections 203.01,

  5  202.12, and 202.19, Florida Statutes, on communications

  6  services shall be applied in accordance with chapter 202,

  7  Florida Statutes, as created by this act, to communications

  8  services reflected on bills dated on or after January 1, 2002.

  9         Section 54.  The sums of $1,272,073, to be used for

10  salaries, benefits and expenses, and $42,000, for operating

11  capital outlay, are appropriated from the Administrative Trust

12  Fund to the Department of Revenue, and 21 FTE's are

13  authorized, to implement the provisions of this act.

14         Section 55.  Except as otherwise expressly provided in

15  this act, this act shall take effect July 1, 2000.

16

17

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26

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  1          STATEMENT OF SUBSTANTIAL CHANGES CONTAINED IN
                       COMMITTEE SUBSTITUTE FOR
  2                             SB 1338

  3

  4  CS for SB 1338 substantially rewrites Florida's communications
    tax law. It creates a new chapter 202, the  Communications
  5  Services Tax Simplification Law, and provides that
    communications services are subject to a uniform statewide tax
  6  rate and a local tax to be administered by the Department of
    Revenue.
  7
    The taxes imposed under Chapter 202 will replace the sales tax
  8  on telecommunications and cable services, as well as the
    public services tax and local franchise fees on these
  9  services, effective January 1, 2002. The gross receipts tax on
    telecommunications services will be administered under this
10  new chapter, and cable service will be subject to this tax.
    Local governments will be limited in their imposition of
11  permit fees on dealers of communications services. The
    intention of the bill is to simplify the imposition and
12  administration of taxes on dealers of communications services,
    with tax rates generating the same amount of revenue in the
13  first year as would have been raised under the previous tax
    structure.
14
    The bill also changes the taxation of prepaid calling
15  arrangements effective July 1, 2000, by subjecting charges for
    prepaid calling arrangements to the 6 percent sales and use
16  tax instead of the 7 percent telecommunication service tax
    rate and to the discretionary sales surtax pursuant to s.
17  212.054. It specifies that such sales of prepaid calling
    arrangements are not subject to the gross receipts tax or the
18  public services tax. The bill also forgives gross receipts tax
    and public services taxes not paid at retail before July 1,
19  2000.

20  The bill includes leases for the placement of wireless towers
    and leases of space on buildings for the placement of wireless
21  antennas to the exemption from sales tax for the lease or
    rental of public or private streets or rights-of-way for
22  purposes of placing utility facilities.

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24

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