Senate Bill 1338c2

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    Florida Senate - 2000                    CS for CS for SB 1338

    By the Committees on Regulated Industries, Fiscal Resource and
    Senator Horne




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  1                      A bill to be entitled

  2         An act relating to communications services;

  3         creating ch. 202, F.S., the Communications

  4         Services Tax Simplification Law; providing

  5         definitions; providing for taxation of the sale

  6         of communications services, effective January

  7         1, 2002; providing for the rate of the tax on

  8         the sales price of communications services and

  9         on the cost of operating a substitute

10         communications system; providing for

11         computation by the Revenue Estimating

12         Conference of a rate applicable to

13         direct-to-home satellite service and for

14         approval by the Legislature; providing for

15         collection and remittance of the taxes on

16         communications services imposed by chapters 202

17         and 203, F.S., on a combined basis; providing a

18         limitation on such taxes on certain interstate

19         communications services; requiring the

20         purchaser to obtain a direct-pay permit;

21         providing exemptions for certain sales to

22         residential households, to governmental

23         entities, and to certain religious or

24         educational organizations; providing

25         legislative intent with respect to future

26         findings of invalidity, exemptions, and local

27         government franchise fees; providing for

28         credits for taxes paid in other jurisdictions;

29         providing special provisions for users of

30         substitute communications systems; providing

31         for payment and collection of the taxes on

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  1         communications; providing for sales for resale;

  2         providing requirements for registration of

  3         dealers of communications services; providing

  4         penalties; providing for fees; providing for

  5         annual resale certificates; providing

  6         procedures for revocation of registration;

  7         providing for disposition of the proceeds of

  8         the taxes on communications services;

  9         authorizing counties and municipalities to levy

10         a discretionary local communications services

11         tax; providing intent regarding tax rates;

12         providing for imposition of a discretionary

13         sales surtax levied by a county or school board

14         under s. 212.055, F.S., as a local

15         communications services tax; providing for

16         application of local taxes to substitute

17         communications systems; providing a limitation

18         on local taxes on certain interstate

19         communications services; requiring the

20         purchaser to obtain a direct-pay permit;

21         providing for use of tax revenues; providing

22         for credit against local taxes for fees

23         required under a franchise agreement; providing

24         for computation by the Revenue Estimating

25         Conference of the initial and maximum rates for

26         local taxes and providing for approval by the

27         Legislature; providing for effectiveness of the

28         initial rates and for increase by emergency

29         ordinance under certain conditions; requiring

30         providers of communications services and local

31         taxing jurisdictions to furnish information;

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  1         providing for determination by the Revenue

  2         Estimating Conference of a rate conversion

  3         factor for counties and school boards that levy

  4         a discretionary sales surtax and providing for

  5         approval by the Legislature; providing for

  6         certain automatic rate reductions; providing

  7         for effective dates and notification with

  8         respect to adoption, repeal, or rate changes of

  9         local taxes; providing procedures and

10         requirements for determination of the local

11         taxing jurisdiction in which a service address

12         is located; providing for creation of an

13         electronic database by the Department of

14         Revenue; providing for certification of

15         databases by the department; providing effect

16         on dealers who do not use the specified methods

17         for such determination; providing procedures

18         and requirements for refunds or credits of

19         communications services taxes; specifying that

20         the authority of public bodies to require taxes

21         or other impositions from dealers of

22         communications services for occupying roads and

23         rights-of-way is preempted by the state;

24         prohibiting public bodies from levying

25         specified taxes and other charges; providing

26         for jurisdiction for suits against dealers;

27         providing for dealers not qualified to do

28         business in this state; specifying powers of

29         the department; providing for rules; providing

30         requirements for the filing of returns and

31         payment of taxes; providing penalties;

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  1         providing for rules for self-accrual; providing

  2         for a dealer's credit; providing penalties for

  3         failure to file returns or for filing false or

  4         fraudulent returns; providing for credits or

  5         refunds for bad debts; requiring certain

  6         dealers to remit taxes by electronic funds

  7         transfer and make returns through an electronic

  8         data interchange; providing for payment of

  9         taxes upon sale or quitting of business;

10         providing for notice to certain persons

11         regarding a dealer's delinquency and providing

12         such persons' duties; providing a penalty;

13         providing for cooperation of state and local

14         agencies; providing that taxes collected become

15         government funds; providing penalties for the

16         theft of government funds; providing department

17         powers regarding warrants, tax executions, and

18         writs of garnishment; providing recordkeeping

19         requirements for dealers; providing a penalty;

20         authorizing sampling by the department;

21         providing for examination of records; providing

22         for audits; providing for assessment of

23         interest and penalties; providing powers of the

24         department to assess from estimates; requiring

25         that taxes be separately stated; prohibiting

26         certain advertising or refunds by dealers;

27         providing a penalty; providing department

28         powers with respect to hearings, cash deposits

29         or bonds, and subpoenas; providing for venue;

30         providing special rules for the administration

31         of local taxes; providing for an advisory

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  1         committee to advise the executive director of

  2         the department regarding implementation of

  3         communications services taxes; amending s.

  4         72.011, F.S.; authorizing taxpayers to contest

  5         assessments or denials of refund under ch. 202,

  6         F.S., in circuit court or pursuant to the

  7         Administrative Procedure Act; amending s.

  8         213.05, F.S.; including ch. 202, F.S., within

  9         the revenue laws for which the department has

10         responsibility; amending s. 213.053, F.S.;

11         including ch. 202, F.S., within confidentiality

12         provisions; authorizing provision of

13         information to local governments that impose a

14         local communications services tax; amending s.

15         212.20, F.S.; providing for distribution of

16         portions of the communications services tax;

17         amending s. 166.231, F.S.; providing that, for

18         the interim period prior to January 1, 2002,

19         the exemption from the municipal public service

20         tax for telecommunications services for resale

21         includes resale by way of a prepaid calling

22         arrangement; providing that taxes not collected

23         thereon prior to July 1, 2000, need not be

24         paid; repealing s. 166.231(9), F.S., which

25         provides for levy of the municipal public

26         service tax on telecommunication services,

27         effective January 1, 2002; conforming language;

28         amending s. 166.233, F.S.; conforming language;

29         amending s. 203.01, F.S.; providing that, for

30         the interim period prior to January 1, 2002,

31         the exemption from the gross receipts tax for

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  1         telecommunication services for resale includes

  2         resale by way of a prepaid calling arrangement;

  3         providing for a gross receipts tax on

  4         communications services, effective January 1,

  5         2002, to be applied pursuant to ch. 202, F.S.;

  6         amending s. 203.012, F.S.; removing and

  7         revising definitions relating to the gross

  8         receipts tax, to conform; repealing s. 203.013,

  9         F.S., which provides for payment of the gross

10         receipts tax on interstate private

11         communications services, and ss. 203.60,

12         203.61, 203.62, and 203.63, F.S., which provide

13         for payment of the gross receipts tax on other

14         interstate and international telecommunication

15         services, to conform; amending s. 212.05, F.S.;

16         providing that the sale or recharge of a

17         prepaid calling arrangement shall be treated as

18         a sale of tangible personal property under ch.

19         212, F.S.; providing that the sale of

20         telecommunication services to a person who

21         furnishes such services pursuant to such an

22         arrangement is a sale for resale; providing

23         that taxes not collected thereon prior to July

24         1, 2000, need not be paid; removing the

25         imposition of tax under ch. 212, F.S., on

26         telecommunications service, telegraph messages,

27         long distance telephone calls, and television

28         system program service, effective January 1,

29         2002; amending s. 212.054, F.S.; providing that

30         charges for prepaid calling arrangements are

31         subject to discretionary sales surtaxes;

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  1         conforming language; amending s. 337.401, F.S.;

  2         providing requirements with respect to the

  3         authority of counties and municipalities to

  4         regulate the placement of telecommunications

  5         facilities in the public roads or

  6         rights-of-way; requiring certain notice to the

  7         Secretary of State; revising such requirements,

  8         effective January 1, 2002, and providing for

  9         application to providers of communications

10         services; requiring municipalities and charter

11         counties and noncharter counties to choose

12         whether or not to impose permit fees on such

13         providers and providing requirements with

14         respect to such fees; providing effect of such

15         choice on the rate of the local communications

16         services tax under ch. 202, F.S., for the local

17         government; providing that the authority of

18         municipalities and counties to require

19         franchise fees from such providers is preempted

20         by the state; authorizing municipalities and

21         counties to request certain in-kind

22         requirements and contributions from cable

23         service providers; providing for a legislative

24         study with respect to state policy regarding

25         such in-kind requirements and contributions;

26         amending s. 212.031, F.S.; revising the

27         exemption from the tax on the lease or rental

28         of or license in real property for streets or

29         rights-of-way and improvements located thereon

30         used by a utility or cable television company;

31         including such exemption within provisions

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  1         relating to leases involving multiple use of

  2         property; providing appropriations and

  3         authorizing positions; providing effective

  4         dates.

  5

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

  7

  8         Section 1.  Section 202.10, Florida Statutes, is

  9  created to read:

10         202.10  Short title.--This chapter may be cited as the

11  "Communications Services Tax Simplification Law."

12         Section 2.  Section 202.11, Florida Statutes, is

13  created to read:

14         202.11  Definitions.--As used in this chapter:

15         (1)  "Actual cost of operating a substitute

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

17  depreciation, interest, maintenance, repair, and other

18  expenses directly attributable to the operation of such

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

20  included in actual cost is the depreciation expense claimed

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

22  payment required by a lease or rental contract or agreement

23  must be included within the actual cost of operating the

24  substitute communications system.

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

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

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

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

29  programming is transmitted over facilities owned or operated

30  by the cable service provider or over facilities owned or

31  operated by one or more other dealers of communications

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

  2  services by which programming is transmitted or broadcast by

  3  microwave or other equipment directly to the purchaser's

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

  5  service. The term includes basic, extended, premium,

  6  pay-per-view, digital, and music services.

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

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

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

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

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

12  other medium or method now in existence or hereafter devised,

13  regardless of the protocol used for such transmission or

14  conveyance. The term does not include:

15         (a)  Information services.

16         (b)  Installation or maintenance of wiring or equipment

17  on a customer's premises.

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

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

20  limited to, directory advertising.

21         (e)  Bad check charges.

22         (f)  Late payment charges.

23         (g)  Billing and collection services.

24         (h)  Internet access service, electronic mail service,

25  electronic bulletin board service, or similar on-line computer

26  services.

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

28  department as a provider of communications services in this

29  state.

30         (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  303(v).

  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 900

  9  number service. The term does not include any video, audio, or

10  other programming service that uses point-to-multipoint

11  distribution by which programming is delivered, transmitted,

12  or broadcast by any means, including any interaction that may

13  be necessary for selecting and using the service, regardless

14  of whether the programming is delivered, transmitted, or

15  broadcast over facilities owned or operated by the seller or

16  another, or whether denominated as cable service or as basic,

17  extended, premium, pay-per-view, digital, music, or two-way

18  cable service.

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

20  or two-way radio communications service, whether identified by

21  the dealer as local, toll, long distance, or otherwise, and

22  which is carried between mobile stations or receivers and land

23  stations, or by mobile stations communicating among

24  themselves, and includes, but is not limited to, cellular

25  communications services, personal communications services,

26  paging services, specialized mobile radio services, and any

27  other form of mobile one-way or two-way communications

28  service.

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

30         (10)  "Prepaid calling arrangement" means the

31  separately stated retail sale by advance payment of

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  1  communications services that consist exclusively of telephone

  2  calls originated by using an access number, authorization

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

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

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

  6  amount.

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

  8  obligated to pay for communications services.

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

10  services for any purpose other than for resale or for use as a

11  component part of or for integration into communications

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

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

14  the rules adopted thereunder.

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

16  services for a consideration.

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

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

19  communications services in this state, including any property

20  or other services that are part of the sale.

21         (a)  The sales price of communications services shall

22  not be reduced by charges for any of the following:

23         1.  Separately identified components of the charge or

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

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

26  taxes, taxes measured by net income, and federal

27  universal-service fund fees.

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

29  communications services.

30         3.  The detailed billing of communications services.

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

  2  communications service.

  3         (b)  The sales price of communications services does

  4  not include charges for any of the following:

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

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

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

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

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

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

11  stated separately.

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

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

14  to, regulatory fees and emergency telephone surcharges, which

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

16  fee or assessment is separately stated.

17         3.  Local telephone service paid for by inserting coins

18  into coin-operated communications devices available to the

19  public.

20         4.  The sale or recharge of a prepaid calling

21  arrangement.

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

23  services, defined as a radio service provided to purchasers

24  while on board an aircraft.

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

26  in connection with its business of providing communications

27  services.

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

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

30  are stated separately from the charges for communications

31  services.

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  1         (15)  "Service address" means:

  2         (a)  In the case of cable services and direct-to-home

  3  satellite services, the location where the customer receives

  4  the services in this state.

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

  6  the location of the communications equipment from which

  7  communications services originate or at which communications

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

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

10  as in the case of mobile communications services, paging

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

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

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

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

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

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

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

18  service paid through a credit or payment mechanism that does

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

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

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

22  first three digits of the seven-digit originating telephone

23  number.

24         (16)  "Substitute communications system" means any

25  telephone system, or other system capable of providing

26  communications services, which a person purchases, installs,

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

28  herself with services used as a substitute for communications

29  services provided by a dealer of communications services.

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

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

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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 communications service, except for direct-to-home

16  satellite 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, 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. If no tax is imposed by this paragraph by reason of

26  s. 202.125(1), the tax imposed by chapter 203 shall

27  nevertheless be collected and remitted in the manner and at

28  the time prescribed for tax collections and remittances under

29  this chapter.

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

31  actual cost of operating a substitute communications system,

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

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

  3  system to conduct a business of providing communications

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

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

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

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

  8  by this paragraph.

  9         (c)  At a rate to be computed by the Revenue Estimating

10  Conference and approved by the Legislature on the retail sales

11  price of any direct-to-home satellite service received in this

12  state. The rate computed by the Revenue Estimating Conference

13  shall be the sum of:

14         1.  The rate set forth in paragraph (a); and

15         2.  The weighted average, based on the aggregate

16  population in the respective taxing jurisdictions, of the rate

17  computed under s. 202.20(2)(a)1. for municipalities and

18  charter counties and the rate computed under such subparagraph

19  for all other counties.

20

21  The proceeds of the tax imposed under this paragraph shall be

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

23  The gross recepts tax imposed by chapter 203 shall be

24  collected on the same taxable transactions and remitted with

25  the tax imposed by this paragraph.

26         (2)  A dealer of taxable communications services shall

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

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

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

30  services prescribed in chapter 203 and the applicable rate of

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

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

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

  3  basis. However, a dealer shall, in reporting each remittance

  4  to the department, identify the portion thereof which consists

  5  of taxes remitted pursuant to chapter 203. Return forms

  6  prescribed by the department shall facilitate such reporting.

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

  8  combined amount of taxes imposed under this section and s.

  9  203.01(1)(a)2. shall not exceed $100,000 per calendar year on

10  charges to any person for interstate communications services

11  that originate outside this state and terminate within this

12  state.  This subsection applies only to holders of a

13  direct-pay permit issued under this subsection.  A refund may

14  not be given for taxes paid before receiving a direct-pay

15  permit.  Upon application, the department may issue a

16  direct-pay permit to the purchaser of communications services

17  authorizing such purchaser to pay tax on such services

18  directly to the department.  Any dealer of communications

19  services furnishing communications services to the holder of a

20  valid direct-pay permit is relieved of the obligation to

21  collect and remit the taxes imposed under this section and s.

22  203.01(1)(a)2. on such services. Tax payments and returns

23  pursuant to a direct-pay permit shall be monthly. As used in

24  this subsection, "person" means a single legal entity and does

25  not mean a group or combination of affiliated entities or

26  entities controlled by one person or group of persons.

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

28  Florida Statutes, is created to read:

29         202.125  Sales of communications services; specified

30  exemptions.--

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  1         (1)  The separately stated sales price of

  2  communications services sold to residential households is

  3  exempt from the tax imposed by s. 202.12. This exemption shall

  4  not apply to any residence that constitutes all or part of a

  5  public lodging establishment as defined in chapter 509, any

  6  mobile communications service, any cable service, or any

  7  direct-to-home satellite service.

  8         (2)  The sale of communications services provided to

  9  the Federal Government, any agency or instrumentality of the

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

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

12  administered pursuant to ss. 202.12 and 202.19.

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

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

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

16  governmental entity is exempt from the taxes imposed or

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

18  does not inure to any transaction otherwise taxable under this

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

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

21  card even when that employee is subsequently reimbursed by the

22  governmental entity.

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

24  or educational organization that is exempt from federal income

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

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

27  and 202.19.

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

29  Florida Statutes, is created to read:

30         202.13  Intent.--

31

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

  2  imposed or administered under this chapter is declared

  3  invalid, ineffective, inapplicable, unconstitutional, or void

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

  5  chapters existed before January 1, 2000, shall fully apply to

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

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

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

  9  declaration shall not affect the taxes imposed or administered

10  under this chapter, but such sale, use, or consumption shall

11  be subject to the taxes imposed under this chapter to the same

12  extent as if such exemption never existed.

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

14  the taxes imposed or administered pursuant to this chapter

15  only the communications services set forth in this chapter as

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

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

18  United States.

19         (3)  The tax on dealers of communications services

20  authorized under this chapter, including the tax imposed by

21  local governments under ss. 202.19 and 202.20, shall supersede

22  the authority of local governments to levy franchise fees as

23  set out in 47 U.S.C. s. 542 without regard to the fact that

24  this is a tax of general applicability on all providers of

25  communications services.

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

27  Florida Statutes, is created to read:

28         202.14  Credit against tax imposed.--To prevent actual

29  multistate taxation of communications services subject to tax

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

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

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  1  local jurisdiction in such other state with respect to such

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

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

  4  the other state or local jurisdiction.

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

  6  Florida Statutes, is created to read:

  7         202.15  Special rule for users of substitute

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

  9  rents, or leases a substitute communications system must

10  register with the department and pay the taxes imposed or

11  administered pursuant to s. 202.12 annually pursuant to rules

12  prescribed by the department.

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

14  Florida Statutes, is created to read:

15         202.16  Payment.--The taxes imposed or administered

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

17  dealers of taxable communications services on the sale at

18  retail in this state of communications services taxable under

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

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

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

22  in the same manner as a cash sale.

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

24  202.12(1)(b) and 202.15, the taxes collected under this

25  chapter and chapter 203, including any penalties or interest

26  attributable to the nonpayment of such taxes or for

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

28  by the purchaser of the communications service and shall be

29  collected from such person by the dealer of communications

30  services.

31

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  1         (b)  Each dealer of communications services selling

  2  communications services in this state shall collect the taxes

  3  imposed under this chapter and chapter 203 from the purchaser

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

  5  from all other charges on the bill or invoice.

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

  7  a component part of or integrated into a communications

  8  service or prepaid calling arrangement for resale, including,

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

10  charges paid by providers of mobile communication services or

11  other communication services, charges paid by cable service

12  providers for the transmission of video or other programming

13  by another dealer of communications services, charges for the

14  sale of unbundled network elements, and any other intercompany

15  charges for the use of facilities for providing communications

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

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

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

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

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

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

22  communications services imposed pursuant to this chapter and

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

24  amounts and brackets applicable to each taxable sale such that

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

26  rate imposed pursuant to this chapter and chapter 203.

27         (4)  Each purchaser of a communications service is

28  liable for the taxes imposed under this chapter and chapter

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

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

31  payment of the tax to a dealer of communications services

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

  2  purchaser from further liability for the tax.

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

  4  Florida Statutes, is created to read:

  5         202.17  Registration.--

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

  7  dealer of communications services must file with the

  8  department an application for a certificate of registration.

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

10  providing communications services without first obtaining a

11  certificate of registration. The failure or refusal to submit

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

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

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

15  who fails or refuses to register shall pay an initial

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

17  prescribed under subsection (5). However, this fee increase

18  may be waived by the department if the failure is due to

19  reasonable cause.

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

21  registration must be completed by the dealer of communications

22  services before engaging in business. The application for a

23  certificate of registration must contain the information

24  required by rule of the department.

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

26  application, shall grant to the applicant a certificate of

27  registration.

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

29  communications services to a dealer of communications services

30  must submit an application for registration before engaging in

31  business in this state.

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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 which states that the applicant is a reseller of

  4  communications services.

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

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

  7  $5, to be deposited in the General Revenue Fund, and must set

  8  forth:

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

10  business within this state.

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

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

13  where records are available for inspection.

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

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

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

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

18  applicant is a corporation organized under the laws of another

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

20  the application a certified copy of the certificate or license

21  issued by the Department of State showing that the corporation

22  is authorized to transact business in this state.

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

24         (6)  Certificates of registration issued by the

25  department are not assignable.

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

27  the department shall provide to each newly registered dealer

28  an annual resale certificate that is valid for the remaining

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

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

31  section, "active dealer" means a person who is registered with

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  1  the department and who is required to file a return at least

  2  once during each applicable reporting period.

  3         (8)  A certificate of registration issued by the

  4  department may be revoked by the department or its designated

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

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

  7  registration, the department must schedule an informal

  8  conference at which the dealer may present evidence regarding

  9  the department's intended revocation or enter into a

10  compliance agreement with the department. The department must

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

12  place, and date of the scheduled informal conference by

13  written notification sent by United States mail to the

14  dealer's last known address of record furnished by the dealer

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

16  the informal conference and present evidence refuting the

17  department's intended revocation or enter into a compliance

18  agreement with the department which resolves the dealer's

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

20  department shall issue an administrative complaint under s.

21  120.60 if the dealer fails to attend the department's informal

22  conference, fails to enter into a compliance agreement with

23  the department resolving the dealer's noncompliance with this

24  chapter, or fails to comply with the executed compliance

25  agreement.

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

27  Florida Statutes, is created to read:

28         202.18  Allocation and disposition of tax

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

30  remitted under this chapter shall be treated as follows:

31

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

  2  202.12(1)(a) and (b) shall be divided as follows:

  3         (a)  The portion of such proceeds which constitutes

  4  gross receipts taxes, imposed at the rate prescribed in

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

  6  accordance with s. 9, Art. XII of the State Constitution.

  7         (b)  The remaining portion shall be distributed

  8  according to s. 212.20(6).

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

10  202.12(1)(c) shall be divided as follows:

11         (a)  The portion of such proceeds which constitutes

12  gross receipts taxes, imposed at the rate prescribed in

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

14  accordance with s. 9, Art. XII of the State Constitution.

15         (b)  The portion of such proceeds which constitutes the

16  tax imposed under s. 202.12(1)(a) shall be allocated to the

17  state and distributed pursuant to s. 212.20(6).

18         (c)  The remaining portion of such proceeds shall be

19  allocated to the municipalities and counties in proportion to

20  the allocation of receipts from the half-cent sales tax under

21  s. 218.61 and the emergency distribution of such tax under s.

22  218.65. The department shall distribute the appropriate amount

23  to each municipality and county each month at the same time

24  that local communications services taxes are distributed

25  pursuant to subsection (3).

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

27  proceeds of each local communications services tax levied by a

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

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

30  the Local Communications Services Tax Clearing Trust Fund and

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

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  1  However, the proceeds of any communications services tax

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

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

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

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

  6  funds collected and received by the department pursuant to a

  7  specific levy authorized by such section, including any

  8  interest and penalties attributable to the tax levy.

  9         (b)  The amount deducted for the costs of

10  administration may not exceed 1 percent of the total revenue

11  generated for all municipalities, counties, and school boards

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

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

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

15  202.19. The total cost of administration shall be prorated

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

17  amount collected for a particular jurisdiction to the total

18  amount collected for all such jurisdictions.

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

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

21  amounts deducted for costs of administration in accordance

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

23  appropriate jurisdictions. The proceeds of taxes imposed

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

25  manner as discretionary surtaxes are distributed, in

26  accordance with ss. 212.054 and 212.055.

27         2.  The department shall make any adjustments to the

28  distributions pursuant to this paragraph which are necessary

29  to reflect the proper amounts due to individual jurisdictions.

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

31  Florida Statutes, is created to read:

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  1         202.19  Authorization to impose local communications

  2  services tax.--

  3         (1)  The governing authority of each county and

  4  municipality may, by ordinance, levy a discretionary

  5  communications services tax.

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

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

  8  shall be up to the maximum rate determined for municipalities

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

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

11  the maximum rate determined for other counties in accordance

12  with s. 202.20(2).

13

14  The rate imposed by any municipality or county shall be

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

16  up to the nearest one-tenth percent.

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

18  (2) reflect the rates for communications services taxes

19  imposed under this chapter which are necessary for each

20  municipality or county to raise the maximum amount of revenues

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

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

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

24  discretionary surtax authorized under s. 212.055. It is the

25  legislative intent that the maximum rates for charter counties

26  be calculated by treating them as having had the same

27  authority as municipalities to impose franchise fees on

28  recurring local telecommunication service revenues prior to

29  July 1, 2000. However, the Legislature recognizes that the

30  authority of charter counties to impose such fees is in

31  dispute, and the treatment provided in this section is not an

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  1  expression of legislative intent that charter counties

  2  actually do or do not possess such authority.

  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 or to require the payment of

14  regulatory fees or assessments pursuant to s. 337.401 by

15  persons using or occupying its roads or rights-of-way in a

16  capacity other than that of a dealer of communications

17  services.

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

19  the tax imposed by any municipality shall be on all

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

21         1.  Originate or terminate in this state; and

22         2.  Are charged to a service address in the

23  municipality.

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

25  shall be on all communications services subject to tax under

26  s. 202.12 which:

27         1.  Originate or terminate in this state; and

28         2.  Are charged to a service address in the

29  unincorporated area of the county.

30         (5)  In addition to the communications services taxes

31  authorized by subsection (1), a discretionary surtax that a

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  1  county or school board has levied under s. 212.055 is imposed

  2  as a local communications services tax under this section, and

  3  the rate shall be determined in accordance with s. 202.20(5).

  4  Each such tax rate shall be applied, in addition to the other

  5  tax rates applied under this chapter, to communications

  6  services subject to tax under s. 202.12 which:

  7         (a)  Originate or terminate in this state; and

  8         (b)  Are charged to a service address in the county.

  9         (6)  Notwithstanding any other provision of this

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

11  any direct-to-home satellite service.

12         (7)  Any tax imposed by a municipality, school board,

13  or county under this section also applies to the actual cost

14  of operating a substitute communications system, to be paid in

15  accordance with s. 202.15. This subsection does not apply to

16  the use by any provider of its own communications system to

17  conduct a business of providing communications services or to

18  the use of any communications system operated by a county, a

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

20  state.

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

22  imposed under this section shall not exceed $100,000 per

23  calendar year on charges to any person for interstate

24  communications services that originate outside this state and

25  terminate within this state. This subsection applies only to

26  holders of a direct-pay permit issued under this subsection. A

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

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

29  a direct-pay permit to the purchaser of communications

30  services authorizing such purchaser to pay tax on such

31  services directly to the department. Any dealer of

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  1  communications services furnishing communications services to

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

  3  obligation to collect and remit the tax on such services. Tax

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

  5  monthly. As used in this subsection, "person" means a single

  6  legal entity and does not mean a group or combination of

  7  affiliated entities or entities controlled by one person or

  8  group of persons.

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

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

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

12  revenues for the repayment of current or future bonded

13  indebtedness.

14         (10)  Notwithstanding any provision of law to the

15  contrary, the exemption set forth in s. 202.125(1) shall not

16  apply to a tax imposed by a municipality, school board, or

17  county pursuant to subsection (4) or subsection (5).

18         (11)  To the extent that a provider of communications

19  services is required to pay a tax, charge, or other fee under

20  any franchise agreement or ordinance with respect to the

21  services or revenues that are also subject to the tax imposed

22  by this section, such provider is entitled to a credit against

23  the amount payable to the state pursuant to this section in

24  the amount of such tax, charge, or fee with respect to such

25  services or revenues.

26         Section 12.  Section 202.20, Florida Statutes, is

27  created to read:

28         202.20  Establishment of initial and maximum rates of

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

30  maximum rates for the local communications services taxes

31

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  1  imposed under s. 202.19(1) shall be determined in accordance

  2  with this section.

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

  4  Estimating Conference shall compute for each municipality and

  5  county the rate of local communications services tax which

  6  would be required to be levied under s. 202.19(1) in order for

  7  such local taxing jurisdiction to raise, through the

  8  imposition of a local communications services tax, revenues

  9  equal to the sum of:

10         1.  The amount of revenues that were actually received

11  from the replaced revenue sources in the fiscal year ending

12  September 30, 2000;

13         2.  An amount representing the reasonably anticipated

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

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

16  immediately preceding September 30, 2000; and

17         3.  An amount representing the revenues from the

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

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

20  the repeal of the public service tax.

21         (b)  The rates computed by the Revenue Estimating

22  Conference shall be presented to the Legislature for review

23  and approval during the 2001 Regular Session. The rates

24  approved by the Legislature under this section shall be

25  effective in the respective local taxing jurisdictions on

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

27  governing authority or voters of such local taxing

28  jurisdictions. The rate computed and approved pursuant to this

29  subsection shall be reduced on January 1, 2003, by that

30  portion of the rate which was necessary to recoup the 1 month

31  of foregone revenues addressed in subparagraph (a)3.

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  1         (c)  With respect to any local taxing jurisdiction, if,

  2  for the periods ending March 31, 2002, June 30, 2002,

  3  September 30, 2002, or December 31, 2002, the revenues

  4  received by that local government from the local

  5  communications services tax imposed under this section are

  6  less than the revenues received from the replaced revenue

  7  sources for the corresponding 2001 period; plus reasonably

  8  anticipated growth in such revenues over the preceding 1-year

  9  period, based on the average growth of such revenues over the

10  immediately preceding 5-year period; plus an amount

11  representing the revenues from the replaced revenue sources

12  for the 1-month period that the local taxing jurisdiction was

13  required to forego as a result of the repeal of the public

14  service tax, the governing authority may adjust the rate of

15  the local communications services tax upward to the extent

16  necessary to generate the entire shortfall in revenues within

17  1 year after the rate adjustment and by an amount necessary to

18  generate the expected amount of revenue on an ongoing basis.

19  The adjustment may be made by emergency ordinance and may be

20  made notwithstanding the maximum rate established under

21  subsection (2) and notwithstanding any schedules or timeframes

22  or any other limitations contained in this section. The

23  emergency ordinance shall specify an effective date for the

24  adjusted rate, which shall be no less than 90 days after the

25  date of adoption of the ordinance. At the end of that year,

26  the local governing authority shall, as soon as is consistent

27  with s. 202.21, reduce the rate by that portion of the

28  emergency rate which was necessary to recoup the amount of

29  revenues not received prior to the implementation of the

30  emergency rate.

31

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

  2  Estimating Conference shall compute, in accordance with this

  3  paragraph, the maximum rates at which local taxing

  4  jurisdictions shall be permitted to impose local

  5  communications services taxes under s. 202.19(1).

  6         1.  A single maximum rate shall apply to all

  7  municipalities and charter counties and another single maximum

  8  rate shall apply to all other counties.

  9         2.  Each respective maximum rate shall reflect the

10  greatest possible amount of revenues which could have been

11  generated from the replaced revenue sources, assuming that

12  each local taxing jurisdiction had imposed every replaced

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

14  produced the greatest amount of revenues.

15         (b)  The rates computed by the Revenue Estimating

16  Conference shall be presented to the Legislature for review

17  and approval during the 2001 Regular Session. The rates

18  approved by the Legislature pursuant to this subsection shall

19  be the maximum rates for purposes of s. 202.19(1).

20         (3)  Each person who provides communications services

21  and each local taxing jurisdiction shall furnish to the

22  Department of Revenue the information necessary for the

23  Revenue Estimating Conference to make the computations

24  required by subsections (1), (2), and (5). All information

25  furnished to the department under this subsection shall be

26  available to all local taxing jurisdictions. The department

27  shall provide technical assistance to the Revenue Estimating

28  Conference and compile and analyze the information in the

29  manner requested by the Revenue Estimating Conference.

30         (4)  Except as otherwise provided in this subsection,

31  "replaced revenue sources" as used in this section means the

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  1  following taxes, charges, fees, or other impositions to the

  2  extent that the respective local taxing jurisdictions were

  3  authorized to impose them prior to July 1, 2000.

  4         (a)  With respect to municipalities and charter

  5  counties and the taxes authorized by s. 202.19(1):

  6         1.  The public service tax on telecommunications

  7  authorized by s. 166.231(9).

  8         2.  Franchise fees on cable service providers as

  9  authorized by 47 U.S.C. s. 542.

10         3.  The public service tax on prepaid calling

11  arrangements.

12         4.  Franchise fees on dealers of communications

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

14  the limit set forth in s. 337.401. For purposes of calculating

15  rates under this section, it is the legislative intent that

16  charter counties be treated as having had the same authority

17  as municipalities to impose franchise fees on recurring local

18  telecommunication service revenues prior to July 1, 2000.

19  However, the Legislature recognizes that the authority of

20  charter counties to impose such fees is in dispute, and the

21  treatment provided in this section is not an expression of

22  legislative intent that charter counties actually do or do not

23  possess such authority.

24         5.  Actual permit fees relating to placing or

25  maintaining facilities in or on public roads or rights-of-way,

26  collected from providers of long-distance, cable, and mobile

27  communications services for the fiscal year ending September

28  30, 2000; however, if a municipality or charter county elects

29  to charge permit fees pursuant to s. 337.401(3)(c)1.a., such

30  fees shall not be included as a replaced revenue source.

31

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

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

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

  4         (5)  For any county or school board that levies a

  5  discretionary surtax under s. 212.055, the rate of such tax

  6  shall be multiplied by a factor to determine the applicable

  7  rate of tax under s. 202.19(5). The Revenue Estimating

  8  Conference shall compute the factor on or before December 31,

  9  2000. The factor shall be calculated such that any rate

10  applied under s. 202.19(5) will produce substantially the same

11  tax revenues as the corresponding rate levied on

12  telecommunication services under s. 212.055. The factor shall

13  be calculated to three decimal places, and the tax rates

14  calculated by applying the factor for purposes of s. 202.19(5)

15  shall be rounded up to the nearest one-tenth percent. The

16  factor shall be presented to the Legislature for review and

17  approval during the 2001 Regular Session.

18         (6)  For purposes of calculating the appropriate value

19  of the replaced revenue under (4)(a)2. and (4)(b), and in

20  conjunction with the study required by this act, the Revenue

21  Estimating Conference may include in its computation any

22  adjustment necessary to include the value of any in-kind

23  requirements and contributions for, or in support of, the use

24  or construction of public, educational, or governmental access

25  facilities authorized under federal law.

26         (7)(a)  The provisions of this subsection shall apply

27  only with respect to the initial and maximum tax rates of a

28  local taxing jurisdiction which on January 1, 2002, is

29  entitled to receive from any dealer of communications services

30  fees in excess of the applicable limitation set forth in s.

31  337.401, as such section existed prior to the effective date

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  1  of this section, pursuant to an agreement with such dealer of

  2  communications services in effect on such date.

  3         (b)  Immediately upon the expiration of an agreement

  4  described in paragraph (a), the rate determined under

  5  subsection (1), as it applies to such local taxing

  6  jurisdiction, shall automatically be reduced by the portion of

  7  such rates representing the difference between the fees

  8  actually received by the taxing jurisdiction pursuant to the

  9  agreement described in paragraph (a) for the fiscal year

10  ending September 30, 2000, and the fees that such jurisdiction

11  would have received for such period under the applicable

12  limitation set forth in s. 337.401, as such section existed

13  prior to the effective date of this section.

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

15  Florida Statutes, is created to read:

16         202.21  Effective dates; procedures for informing

17  dealers of communications services of tax levies and rate

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

19  local communications services tax imposed under s. 202.19 is

20  effective with respect to taxable services included on bills

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

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

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

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

25  September 1 immediately preceding such January 1. Notification

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

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

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

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

30  municipality or county to respond to inquiries concerning the

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

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  1  repeal, or change to all affected dealers of communications

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

  3  tax. Any local government that adjusts the rate of its local

  4  communications services tax by emergency ordinance pursuant to

  5  s. 202.20(1)(c) shall notify the department of the new tax

  6  rate immediately upon its adoption. The department shall

  7  provide written notice of the adoption of the new rate to all

  8  affected dealers within 30 days after receiving such notice.

  9  In any notice to providers or publication of local tax rates

10  for purposes of this chapter, the department shall express the

11  rate for a municipality or charter county as the sum of the

12  tax rates levied within such jurisdiction pursuant to s.

13  202.19(2)(a) and (5), and shall express the rate for any other

14  county as the sum of the tax rates levied pursuant to s.

15  202.19(2)(b) and (5). The department is not liable for any

16  loss of or decrease in revenue by reason of any error,

17  omission, or untimely action that results in the nonpayment of

18  a tax imposed under s. 202.19.

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

20  Florida Statutes, is created to read:

21         202.22  Determination of local tax situs.--

22         (1)  A dealer of communications services who is

23  obligated to collect and remit a local communications services

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

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

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

27  service address to an incorrect local taxing jurisdiction, if

28  the dealer of communications services exercises due diligence

29  in applying one or more of the following methods for

30  determining the local taxing jurisdiction in which a service

31  address is located:

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  1         (a)  Employing an electronic database provided by the

  2  department under subsection (2).

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

  4  supplied by a vendor which has been certified by the

  5  department under subsection (3).

  6         (c)  Employing enhanced zip codes to assign each street

  7  address, address range, post office box, or post office box

  8  range in the dealer's service area to a specific local taxing

  9  jurisdiction. If an enhanced zip code overlaps boundaries of

10  municipalities or counties, or if an enhanced zip code cannot

11  be assigned to the service address because the service address

12  is in a rural area or a location without postal delivery, the

13  dealer of communications services or its database vendor shall

14  assign the affected service addresses to one specific local

15  taxing jurisdiction within such zip code based on a reasonable

16  methodology. A methodology satisfies this paragraph if the

17  information used to assign service addresses is obtained by

18  the dealer or its database vendor from:

19         1.  A database provided by the department;

20         2.  A database certified by the department under

21  subsection (3);

22         3.  Responsible representatives of the relevant local

23  taxing jurisdictions; or

24         4.  The United States Census Bureau or the United

25  States Postal Service.

26         (d)  Employing a database of street addresses or other

27  assignments that does not meet the requirements of paragraphs

28  (a)-(c), but meets the criteria set forth in paragraph (3)(a)

29  at the time of audit by the department.

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

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

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  1  thereafter maintain, an electronic database that gives due and

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

  3  National Standards Institute's Accredited Standards Committee

  4  X12 and that designates for each street address, address

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

  6  including any multiple postal street addresses applicable to

  7  one street location, the local taxing jurisdiction in which

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

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

10  such local taxing jurisdiction, identified by one nationwide

11  standard numeric code. The nationwide standard numeric code

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

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

14  of taxing jurisdiction throughout the United States using a

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

16  approved by the Federation of Tax Administrators and the

17  Multistate Tax Commission. Each address or address range or

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

19  standard postal format, including the street number, street

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

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

22  of the availability of the database, and any subsequent

23  revision thereof, by publication in the Florida Administrative

24  Weekly.

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

26  the department all information needed to create and update the

27  electronic database, including changes in service addresses,

28  annexations, incorporations, reorganizations, and any other

29  changes in jurisdictional boundaries. The information

30  furnished to the department must specify an effective date,

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

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  1  information must be furnished to the department at least 120

  2  days prior to the effective date. However, the requirement

  3  that counties submit information pursuant to this paragraph

  4  shall be subject to appropriation.

  5         2.  The department shall update the electronic database

  6  in accordance with the information furnished by local taxing

  7  jurisdictions under subparagraph 1. Each update must specify

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

  9  must be posted by the department on a website not less than 90

10  days prior to the effective date. The department shall also

11  furnish the update on magnetic or electronic media to any

12  dealer of communications services or vendor who requests the

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

14  fee from the dealer of communications services which does not

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

16  electronic media.

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

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

19  Each dealer of communications services shall collect and remit

20  local communications services taxes imposed under this chapter

21  only for those service addresses that are contained in the

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

23  subsection are included in the database.

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

25  certified by the department pursuant to rules that implement

26  the following criteria and procedures:

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

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

29  proper jurisdiction with an overall accuracy rate of 95

30  percent at a 95 percent level of confidence, as determined

31  through a statistically reliable sample. The accuracy must be

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

  2  the dealer does not encompass the entire state, based on the

  3  dealer's entire service area.

  4         (b)  Upon receipt of an application for certification

  5  or recertification of a database, the department shall examine

  6  the application and, within 90 days after receipt, notify the

  7  applicant of any apparent errors or omissions and request any

  8  additional information, conduct any inspection, or perform any

  9  testing determined necessary. The applicant shall designate an

10  individual responsible for providing access to all records,

11  facilities, and processes the department determines are

12  reasonably necessary to review and make a determination

13  regarding the application. Such access must be provided within

14  10 working days after notification.

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

16  rule and must include the applicant's name, federal employer

17  identification number, mailing address, business address, and

18  any other information required by the department. The

19  application must identify, among other elements required by

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

21  database.

22         (d)  Each application for certification must be

23  approved or denied upon written notice within 180 days after

24  receipt of a completed application. The notice must specify

25  the grounds for denial, inform the applicant of any remedy

26  that is available, and indicate the procedure that must be

27  followed. Filing of a petition under chapter 120 does not

28  preclude the department from certifying the database upon a

29  demonstration that the deficiencies have been corrected.

30         (e)  Certification or recertification of a database

31  under this subsection is effective from the date of the

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  1  department's notice approving the application until the

  2  expiration of 3 or 4 years following such date, as set forth

  3  in the notice, except as provided in paragraph (f).

  4         (f)  An application for recertification of a database

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

  6  the date of any prior certification. The application and

  7  procedures relating thereto shall be governed by this

  8  subsection, except as otherwise provided in this paragraph.

  9  When an application for recertification has been timely

10  submitted, the existing certification shall not expire but

11  shall remain effective until the application has received

12  final action by the department, or if the application is

13  denied, until the denial is no longer subject to

14  administrative or judicial review or such later date as may be

15  fixed by order of the reviewing court.

16         (4)(a)  As used in this section, "due diligence" means

17  the care and attention that is expected from, and ordinarily

18  exercised by, a reasonable and prudent person under the

19  circumstances.

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

21  of communications services is exercising due diligence in

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

23  (1) if the dealer:

24         1.  Expends reasonable resources to accurately and

25  reliably implement such method. However, the employment of

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

27  requirements of this subparagraph; and

28         2.  Maintains adequate internal controls in assigning

29  street addresses, address ranges, post offices boxes, and post

30  office box ranges to taxing jurisdictions. Internal controls

31  are adequate if the dealer of communications services:

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  1         a.  Maintains and follows procedures to obtain and

  2  implement periodic and consistent updates to the database; and

  3         b.  Corrects errors in the assignments of service

  4  addresses to local taxing jurisdictions within 120 days after

  5  the dealer discovers such errors.

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

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

  8  determining the local taxing jurisdiction in which a service

  9  address is located, the dealer of communications services may

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

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

12  the service address to an incorrect local taxing jurisdiction.

13  However, the dealer of communications services is not liable

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

15  amount was collected and remitted by the dealer of

16  communications services with respect to a tax imposed by

17  another local taxing jurisdiction. Upon determining that an

18  amount was collected and remitted by a dealer of

19  communications services with respect to a tax imposed by

20  another local taxing jurisdiction, the department shall adjust

21  the respective amounts of the proceeds paid to each such

22  taxing jurisdiction under s. 202.18 in the month immediately

23  following such determination.

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

25  each dealer of communications services must notify the

26  department of the methods it intends to employ for determining

27  the local taxing jurisdiction in which service addresses are

28  located.

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

30  communications services employs a method of assigning service

31  addresses other than as set forth in paragraph (1)(a), (b), or

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  1  (c), the deduction allowed to the dealer of communications

  2  services as compensation under s. 202.28 shall be 0.25 percent

  3  of the tax due and accounted for and remitted to the

  4  department.

  5         (7)  As used in this section, "enhanced zip code" means

  6  a United States postal zip code of 9 or more digits.

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

  8  Florida Statutes, is created to read:

  9         202.23  Procedure on purchaser's request for refund or

10  credit of communications services taxes.--

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

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

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

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

15  refund or credit to the dealer in accordance with this

16  section. A request shall not be granted unless the amount

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

18  the state or to any local taxing jurisdiction.

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

20  under this section if:

21         1.  The dealer charged and collected the tax with

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

23  communications services taxes imposed by this chapter or

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

25  rate.

26         2.  The purchaser or the transaction was exempt or

27  immune from such taxes.

28         3.  The purchaser was assigned to the incorrect local

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

30  202.19.

31         4.  The purchaser paid the tax in error.

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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 3., the dealer shall contemporaneously

  4  furnish to the department an identification of the charges

  5  included in the taxable measure and the tax rates applied to

  6  the charges, or a written identification of each local

  7  jurisdiction to which the purchaser was assigned and the

  8  amounts collected from the purchaser and reported for each

  9  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 the dealer by paragraphs (1)(d), (e), and (f). In

11  any such 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 that

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

  5  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  his or her 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.  Requiring any dealer of communications services to

30  enter into or extend the term of a franchise or other

31

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  1  agreement that requires the payment of a tax, charge, fee, or

  2  other imposition.

  3         3.  Adopting or enforcing any provision of any

  4  ordinance or agreement to the extent that such provision

  5  obligates a dealer of communications services to charge,

  6  collect, or pay to the public body a tax, charge, fee, or

  7  other imposition.

  8

  9  Each municipality and county retains authority to negotiate

10  all terms and conditions of a cable service franchise allowed

11  by federal and state law except those terms and conditions

12  related to franchise fees and the definition of gross revenues

13  or other definitions or methodologies related to the payment

14  or assessment of franchise fees on providers of cable

15  services.

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

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

18  payment of property or services which is required by ordinance

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

20  through a dealer of communications services in its capacity as

21  a dealer of communications services, regardless of whether

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

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

24  charge, franchise fee, user fee, privilege fee, occupancy fee,

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

26  fee, or other tax or fee;

27         2.  Measured by the amounts charged or received for

28  services, regardless of whether such amount is permitted or

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

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

31  other means; or

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  1         3.  Intended as compensation for the use of public

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

  3  for other purposes.

  4         (c)  This subsection does not apply to:

  5         1.  Local communications services taxes levied under

  6  this chapter.

  7         2.  Ad valorem taxes levied pursuant to chapter 200.

  8         3.  Occupational license taxes levied under chapter

  9  205.

10         4.  "911" service charges levied under chapter 365.

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

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

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

14  purpose, including, but not limited to, the placement or

15  attachment of equipment used in the provision of

16  communications services.

17         6.  Permit fees of general applicability which are not

18  related to placing or maintaining facilities in or on public

19  roads or rights-of-way.

20         7.  Permit fees related to placing or maintaining

21  facilities in or on public roads or rights-of-way pursuant to

22  s. 337.401.

23         8.  Any in-kind requirements or contributions for, or

24  in support of the use or construction of, public, educational,

25  or governmental access facilities authorized under federal law

26  and imposed on providers of cable service pursuant to any

27  ordinance or agreement.  Nothing in this subparagraph shall

28  prohibit the ability of providers of cable service to recover

29  such expenses as allowed under federal law.  This subparagraph

30  shall be reviewed by the Legislature during the 2001

31

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  1  legislative session in conjunction with the study required by

  2  this act.

  3         9.  Special assessments and impact fees.

  4         10.  Pole attachment fees that are charged by a local

  5  government for attachments to utility poles owned by the local

  6  government.

  7         11.  Utility service fees or other similar user fees

  8  for utility services.

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

10  or imposition authorized by general law on the effective date

11  of this section which is not specifically prohibited by this

12  subsection or included as a replaced revenue source in s.

13  202.20.

14         (3)  As used in this section, "public body" has the

15  meaning ascribed in s. 1.01(8), and includes, without

16  limitation, every division, agency, and instrumentality

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

18  branch of state government.

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

20  Florida Statutes, is created to read:

21         202.25  Jurisdiction; dealers not qualified to do

22  business in this state.--

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

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

25  collecting any tax due from the dealer, including garnishment

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

27  circuit court of this state having jurisdiction of the subject

28  matter.

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

30  this state shall designate with the department an agent within

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

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

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

  3  constitutes the agent for the service of such process.

  4         Section 18.  Section 202.26, Florida Statutes, is

  5  created to read:

  6         202.26  Department powers.--

  7         (1)  The department shall administer and enforce the

  8  assessment and collection of the taxes, interest, and

  9  penalties collected under or imposed by this chapter.

10         (2)  The provisions of chapter 213 shall, as far as

11  lawful and practicable, be applicable to the taxes imposed and

12  administered under this chapter and to the collection thereof

13  as if fully set out in this chapter. However, no provision of

14  chapter 213 shall apply if it conflicts with any provision of

15  this chapter.

16         (3)  To administer the tax imposed by this chapter, the

17  department may adopt rules relating to:

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

19  including provisions concerning electronic funds transfer and

20  electronic data interchange.

21         (b)  The determination of customer service addresses.

22         (c)  The interpretation or definition of any exemptions

23  or exclusions from taxation granted by law.

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

25  determining the taxable status of discounts and rebates.

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

27  taxpayers.

28         (f)  The records and methods necessary for a dealer to

29  demonstrate the exercise of due diligence as defined by s.

30  202.22(4)(b).

31

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  1         (g)  The creation of the database described in s.

  2  202.22(2) and the certification and recertification of the

  3  databases as described in s. 202.22(3).

  4         (h)  The registration of dealers.

  5         (4)  The executive director of the department is

  6  authorized, and all conditions are deemed met, to adopt

  7  emergency rules under ss. 120.536(1) and 120.54(4) to

  8  implement this chapter. Notwithstanding any other provision of

  9  law, such emergency rules shall remain effective for 6 months

10  after the date of adoption and may be renewed during the

11  pendency of procedures to adopt rules addressing the subject

12  of the emergency rules.

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

14  Florida Statutes, is created to read:

15         202.27  Return filing; rules for self-accrual.--

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

17  payable under this chapter and chapter 203, every dealer has

18  the duty to file a return and remit the taxes to the

19  department, on or before the 20th day of the month, upon forms

20  prepared and furnished by the department or in a format

21  prescribed by it. The department shall, by rule, prescribe the

22  information to be furnished by taxpayers on such returns.

23         (2)  The department may require:

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

25  remitted by the dealer for the preceding four calendar

26  quarters did not exceed $1,000.

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

28  remitted by the dealer for the preceding four calendar

29  quarters did not exceed $500.

30

31

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

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

  3  exceed $100.

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

  5  tax remitted by the dealer for the preceding four calendar

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

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

  8  required to be initiated through an electronic data

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

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

11  federal or state legal holiday, returns are timely if

12  postmarked on the next succeeding workday. Any dealer who

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

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

15  maintains records for such locations in a central office or

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

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

18  location; however, the return must clearly indicate the

19  amounts collected within each location. Each dealer shall file

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

21  such period.

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

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

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

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

26  of making the return shall cause the taxes to become

27  delinquent. All taxes and all interest and penalties imposed

28  or administered under this chapter must be remitted to the

29  department at Tallahassee or at another office designated by

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

31

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

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

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

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

  5  department requires in order to ascertain the amount of taxes

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

  7  return that is not accompanied by payment is prima facie

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

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

10  members of any firm or incorporated society or organization,

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

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

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

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

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

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

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

18  775.082 or s. 775.083. The signing of a written return has the

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

20  of appending an oath thereto.

21         (6)  The department may provide by rule for

22  self-accrual of the communications services tax when:

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

24  permits; or

25         (b)  The taxable status of sales of communications

26  services will be known only upon use.

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

28  Florida Statutes, is created to read:

29         202.28  Credit for collecting tax; penalties.--

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

31  purpose of compensating persons providing communications

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

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

  3  taxes, persons collecting taxes imposed under this chapter

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

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

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

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

  8  tax is delinquent at the time of payment.

  9         (b)  The department may deny the collection allowance

10  if a taxpayer files an incomplete return.

11         1.  For the purposes of this chapter, a return is

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

13  arrangement that the physical handling, verification, review

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

15  reported on the return can not be readily accomplished.

16         2.  The department shall adopt rules requiring the

17  information that it considers necessary to ensure that the

18  taxes levied or administered under this chapter are properly

19  collected, reviewed, compiled, reported, and enforced,

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

21  of the amount of gross sales; the amount of taxable sales; the

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

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

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

25  interest; and the amount due with the return.

26         (c)  The collection allowance and other credits or

27  deductions provided in this chapter shall be applied to the

28  taxes reported for the jurisdiction previously credited with

29  the tax paid.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

13  775.083.

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

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

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

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

18  percent of the tax bill or fee, and:

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

20  less than $300:

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

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

23  775.082 or s. 775.083.

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

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

26  775.082 or s. 775.083.

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

28  offenses, a felony of the third degree, punishable as provided

29  in s. 775.082, s. 775.083, or s. 775.084.

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

31  $300 or more but less than $20,000, such person commits a

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

  2  775.082, s. 775.083, or s. 775.084.

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

  4  $20,000 or more but less than $100,000, such person commits a

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

  6  775.082, s. 775.083, or s. 775.084.

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

  8  $100,000 or more, such person commits a felony of the first

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

10  s. 775.084.

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

12  Florida Statutes, is created to read:

13         202.29  Bad debts.--

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

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

16  the dealer on unpaid balances due on worthless accounts within

17  12 months following the last day of the calendar year for

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

19  income tax return.

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

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

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

23  after such receipt and the tax paid accordingly.

24         (3)  Bad debts associated with accounts receivable

25  which have been assigned or sold with recourse are eligible

26  for inclusion by the dealer in the credit or refund authorized

27  by this section.

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

29  Florida Statutes, is created to read:

30         202.30  Payment of taxes by electronic funds transfer;

31  filing of returns by electronic data interchange.--

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

  2  remit taxes by electronic funds transfer, in the manner

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

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

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

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

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

  8  is initiated through an electronic data interchange. The

  9  department shall prescribe the acceptable method of transfer;

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

11  interchange, giving due regard to developing uniform standards

12  for formats as adopted by the American National Standards

13  Institute; the circumstances under which an electronic data

14  interchange will serve as a substitute for the filing of

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

16  taxpayers will be provided with acknowledgments. The

17  department must accept such returns as timely if initiated and

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

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

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

21  next succeeding workday.

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

23  return through an electronic data interchange when problems

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

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

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

27  problems exist.

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

29  and furnish to all dealers, except dealers filing through

30  electronic data interchange, or make available or prescribe to

31  the dealers all necessary forms for filing returns and

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  1  instructions to ensure a full collection from dealers and an

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

  3  secure such forms does not relieve the dealer of the

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

  5  required.

  6         (b)  The department shall prescribe the format and

  7  instructions necessary for filing returns in a manner that is

  8  initiated through an electronic data interchange to ensure a

  9  full collection from dealers and an accounting for the taxes

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

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

12  time and in the manner required.

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

14  Florida Statutes, is created to read:

15         202.31  Sale of business; liability for tax;

16  procedures; penalty for violations.--

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

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

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

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

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

22  shall withhold a sufficient portion of the purchase money to

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

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

25  the department showing that they have been paid or a

26  certificate stating that no taxes, interest, or penalties are

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

28  substantially all of the assets of a business fails to

29  withhold a sufficient amount of the purchase money as required

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

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

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

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

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

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

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

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

  7  liability under this section, the seller or purchaser may

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

  9  department may contract with private auditors pursuant to s.

10  213.28 to perform the audit. The department may charge the

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

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

13  or penalty quits the business without the benefit of a

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

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

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

17  prohibited from engaging in any business in this state until

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

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

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

21  the performance of further business activity until such tax is

22  paid. A temporary injunction enjoining further business

23  activity may be granted by a court without notice.

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

25  taxes imposed or administered by this chapter, the department

26  may give notice of the amount of such delinquency by

27  registered mail to all persons having in their possession or

28  under their control any credits or other personal property

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

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

31  notified shall within 5 days after receipt of the notice

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  1  advise the department of all such credits, other personal

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

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

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

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

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

  7  until the department consents to a transfer or disposition or

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

  9  whichever occurs first, except that the credits, other

10  personal property, or debts that exceed the delinquent amount

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

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

13  prior history of sales tax delinquencies. All persons notified

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

15  other personal property belonging to such dealer or any debts

16  incurred and owing to such dealer which subsequently come into

17  their possession or under their control during the time

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

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

20  seeks to prevent the transfer or other disposition of a

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

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

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

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

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

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

27  notified makes any transfer or disposition of the property or

28  debts required to be withheld, he or she is liable to the

29  state for any indebtedness due under this chapter from the

30  person with respect to whose obligation the notice was given

31  to the extent of the value of the property or the amount of

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  1  the debts thus transferred or paid if, solely by reason of

  2  such transfer or disposition, the state is unable to recover

  3  the indebtedness of the person with respect to whose

  4  obligation the notice was given. All such credits or other

  5  personal property or debts are subject to garnishment by the

  6  department for satisfaction of the delinquent taxes due.

  7         (4)  After notice by the department of a transferee's

  8  liability under this section, the dealer shall have 60 days

  9  within which to file an action as provided in chapter 72.

10         (5)  Any violation of this section is a misdemeanor of

11  the first degree, punishable as provided in s. 775.082 or s.

12  775.083.

13         Section 24.  Effective January 1, 2002, section 202.32,

14  Florida Statutes, is created to read:

15         202.32  State and local agencies to cooperate in

16  administration of law.--The department may request from any

17  state, county, municipal, or local governmental agency any

18  information that the department considers necessary in

19  administering this chapter, and such agency shall furnish such

20  information.

21         Section 25.  Effective January 1, 2002, section 202.33,

22  Florida Statutes, is created to read:

23         202.33  Taxes declared to be government funds;

24  penalties for failure to remit taxes; warrants.--

25         (1)  The taxes collected under this chapter become

26  government funds from the moment of collection by the dealer.

27         (2)  Any person who, with intent to unlawfully deprive

28  or defraud the state or a local government of its moneys or

29  the use or benefit thereof, fails to remit taxes collected

30  under this chapter is guilty of the theft of government funds,

31  punishable as follows:

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  1         (a)  If the total amount of stolen revenue is less than

  2  $300, the offense is a misdemeanor of the second degree,

  3  punishable as provided in s. 775.082 or s. 775.083. For a

  4  second offense, the offender is guilty of a misdemeanor of the

  5  first degree, punishable as provided in s. 775.082 or s.

  6  775.083. For a third or subsequent offense, the offender is

  7  guilty of a felony of the third degree, punishable as provided

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

  9         (b)  If the total amount of stolen revenue is $300 or

10  more, but less than $20,000, the offense is a felony of the

11  third degree, punishable as provided in s. 775.082, s.

12  775.083, or s. 775.084.

13         (c)  If the total amount of stolen revenue is $20,000

14  or more, but less than $100,000, the offense is a felony of

15  the second degree, punishable as provided in s. 775.082, s.

16  775.083, or s. 775.084.

17         (d)  If the total amount of stolen revenue is $100,000

18  or more, the offense is a felony of the first degree,

19  punishable as provided in s. 775.082, s. 775.083, or s.

20  775.084.

21         (3)  All taxes collected under this chapter must be

22  remitted to the department. In addition to criminal sanctions,

23  the department shall, when any tax becomes delinquent or is

24  otherwise in jeopardy under this chapter, issue a warrant for

25  the full amount of the tax due or estimated to be due, with

26  the interest, penalties, and cost of collection, directed to

27  the sheriffs of the state, and mail the warrant to the clerk

28  of the circuit court of the county where any property of the

29  taxpayer is located. Upon receipt of the warrant, the clerk of

30  the circuit court shall record it, and thereupon the amount of

31  the warrant becomes a lien on any real or personal property of

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  1  the taxpayer in the same manner as a recorded judgment. The

  2  department may issue a tax execution to enforce the collection

  3  of taxes imposed by this chapter and deliver it to any

  4  sheriff. The sheriff shall thereupon proceed in the same

  5  manner as prescribed by law for executions and shall be

  6  entitled to the same fees for his or her services in executing

  7  the warrant to be collected. The department may also have a

  8  writ of garnishment with respect to any indebtedness due to

  9  the delinquent dealer by a third person in any goods, money,

10  chattels, or effects of the delinquent dealer in the hands,

11  possession, or control of the third person. Upon payment of

12  the execution, warrant, judgment, or garnishment, the

13  department shall satisfy the lien of record within 30 days. If

14  there is jeopardy to the revenue and jeopardy is asserted in

15  or with an assessment, the department shall proceed in the

16  manner specified for jeopardy assessments in s. 213.732.

17         Section 26.  Effective January 1, 2002, section 202.34,

18  Florida Statutes, is created to read:

19         202.34  Records required to be kept; power to inspect;

20  audit procedure.--

21         (1)(a)  Each dealer shall secure, maintain, and keep as

22  long as required by s. 213.35 a complete record of

23  communications services sold at retail by the dealer, together

24  with invoices, records of gross receipts from such sales, and

25  other pertinent records and papers required by the department

26  for the reasonable administration of this chapter. All such

27  records that are located or maintained in this state must be

28  made available for inspection by the department at all

29  reasonable hours at the dealer's office or other place of

30  business located in this state. Any dealer who maintains such

31  books and records outside this state must make such books and

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  1  records available for inspection by the department wherever

  2  the dealer's general records are kept. Any dealer subject to

  3  the provisions of this chapter who violates this subsection is

  4  guilty of a misdemeanor of the first degree, punishable as

  5  provided in s. 775.082 or s. 775.083. If, however, any

  6  subsequent offense involves intentional destruction of such

  7  records with an intent to evade payment of or deprive the

  8  government of any tax revenues, such subsequent offense

  9  constitutes a felony of the third degree, punishable as

10  provided in s. 775.082 or s. 775.083.

11         (b)  For the purpose of this subsection, if a dealer

12  does not have adequate records of its sales of communications

13  services, the department may, upon the basis of a test or

14  sampling of the dealer's available records or other

15  information relating to the sales made by such dealer for a

16  representative period, determine the proper basis for

17  assessing tax. This subsection does not affect the duty of the

18  dealer to collect, or the liability of any consumer to pay,

19  any tax imposed or administered under this chapter.

20         (c)  If the records of a dealer are adequate but

21  voluminous, the department may reasonably sample such records

22  and project the audit findings derived therefrom over the

23  entire audit period to determine the proper basis for

24  assessing tax. In order to conduct such a sample, the

25  department must first make a good faith effort to reach an

26  agreement with the dealer which provides for the means and

27  methods to be used in the sampling process. If an agreement is

28  not reached, the dealer is entitled to a review by the

29  executive director or the executive director's designee of the

30  sampling method to be used by the auditor.

31

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  1         (2)  For the purpose of enforcement of this chapter,

  2  each dealer shall allow the department to examine its books

  3  and records at all reasonable hours; and, if the dealer

  4  refuses, the department may petition the circuit court to

  5  order the dealer to permit such examination, subject to the

  6  right of removal of the cause to the judicial circuit wherein

  7  such person's business is located or wherein such person's

  8  books and records are kept.

  9         (3)  Each person who sells or purchases communications

10  services shall permit the department to examine his or her

11  books and records at all reasonable hours. The person shall

12  also maintain books and records as long as required by s.

13  213.35 in order to disclose the sales and purchases of all

14  services sold, to whom sold, and the amount sold, in the form

15  and manner that the department requires, so that the

16  department can determine the volume of services sold or

17  purchased, as defined by this chapter, and the dates and

18  amounts of such sales and purchases. The department may

19  petition the circuit court to require any person who refuses

20  to keep such records to permit such inspection, subject to the

21  right of removal of the cause to the judicial circuit wherein

22  such person's business is located or wherein such person's

23  books and records are kept.

24         (4)(a)  The department shall send written notification,

25  at least 60 days prior to the date an auditor is scheduled to

26  begin an audit, informing the person of the audit. The

27  department is not required to give 60 days' prior notification

28  of a forthcoming audit whenever the person requests an

29  emergency audit.

30         (b)  The written notification must specify:

31

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  1         1.  The approximate date on which the auditor is

  2  scheduled to begin the audit.

  3         2.  A reminder that all of the records, receipts,

  4  invoices, resale certificates, and related documentation of

  5  the person must be made available to the auditor.

  6         3.  Any other requests or suggestions that the

  7  department considers necessary.

  8         (c)  Only records, receipts, invoices, resale

  9  certificates, and related documentation that are available to

10  the auditor when the audit begins are acceptable for the

11  purposes of the audit. A resale certificate containing a date

12  prior to the date the audit commences constitutes acceptable

13  documentation of the specific transactions that occurred in

14  the past.

15         (d)  The provisions of this chapter concerning

16  fraudulent or improper records, receipts, invoices, resale

17  certificates, and related documentation apply with respect to

18  any audit.

19         (e)  The requirement in paragraph (a) of 60 days'

20  written notification does not apply in cases of distress or

21  jeopardy as provided in s. 202.33 or s. 202.36.

22         Section 27.  Effective January 1, 2002, section 202.35,

23  Florida Statutes, is created to read:

24         202.35  Powers of department in dealing with

25  delinquents; tax to be separately stated.--

26         (1)  If any dealer or other person fails to remit the

27  tax, or any portion thereof, on or before the day when the tax

28  is required by law to be paid, there will be added to the

29  amount due interest at the rate calculated pursuant to s.

30  213.235 of the amount due from the date due until paid.

31  Interest on the delinquent tax is to be calculated beginning

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  1  on the 21st day of the month following the month for which the

  2  tax is due, except as otherwise provided in this chapter.

  3         (2)  All penalties and interest imposed by this chapter

  4  are payable to and collectible by the department in the same

  5  manner as if they were a part of the tax collected under this

  6  chapter. The department may settle or compromise any such

  7  interest or penalties pursuant to s. 213.21.

  8         (3)  If a dealer or other person fails or refuses to

  9  make his or her records available for inspection so that an

10  audit or examination of his or her books and records cannot be

11  made, fails or refuses to register as a dealer, fails to make

12  a report and pay the tax as provided by this chapter, makes a

13  grossly incorrect report, or makes a report that is false or

14  fraudulent, the department shall make an assessment from an

15  estimate based upon the best information then available to it

16  for the taxable period of retail sales of the dealer, together

17  with any accrued interest and penalties. The department shall

18  then proceed to collect the taxes, interest, and penalties on

19  the basis of such assessment, which shall be considered prima

20  facie correct; and the burden to show the contrary rests upon

21  the dealer or other person.

22         (4)  Each dealer who makes retail sales of

23  communications services shall add the amount of the taxes

24  imposed or administered under this chapter to the price of the

25  services sold by him or her and shall state the taxes

26  separately from the price of the services on all invoices. The

27  combined amount of taxes due under ss. 202.12 and 203.01 shall

28  be stated and identified as the Florida communications

29  services tax, and the combined amount of taxes due under s.

30  202.19 shall be stated and identified as the local

31  communications services 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 he or she

  3  will absorb all or any part of the tax; that he or she will

  4  relieve the purchaser of the payment of all or any part of the

  5  tax; that the tax will not be added to the selling price of

  6  the property or services sold or released; or, when added,

  7  that it or any part thereof will be refunded either directly

  8  or indirectly by any method. A person who violates this

  9  subsection with respect to advertising or refund is guilty of

10  a misdemeanor of the second degree, punishable as provided in

11  s. 775.082 or s. 775.083. A second or subsequent offense

12  constitutes a misdemeanor of the first degree, punishable as

13  provided in s. 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 his or her employees to give testimony under

  7  oath 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 third

  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, "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.

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; to a subpoena

  4  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  shall be added to and included in the amounts reported to the

31  department as taxes imposed under s. 202.19(1). A dealer of

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  1  communications services may include in a single payment to the

  2  department:

  3         (a)  The total amount of all local communications

  4  services taxes imposed pursuant to s. 202.19; and

  5         (b)  The amount of communications services tax imposed

  6  by ss. 202.12 and 203.01.

  7         Section 30.  The Revenue Estimating Conference shall

  8  compute the rate of the tax on the sales price of

  9  direct-to-home satellite services pursuant to s. 202.12(1)(c),

10  Florida Statutes, on or before December 31, 2000, and such

11  rate shall be presented to the Legislature for review and

12  approval during the 2001 Regular Session.

13         Section 31.  The executive director of the Department

14  of Revenue shall appoint members to an advisory committee by

15  August 1, 2000. Each member shall serve at the discretion of

16  the executive director. The committee shall include consumer,

17  county, municipal, state, and communications services dealer

18  representatives, along with other interested parties the

19  executive director deems appropriate. During the period of

20  implementation of the communications services tax

21  simplification law, the committee shall advise the executive

22  director regarding the department's transition strategy,

23  development of necessary business processes, rule adoption

24  processes, and processes for identifying issues for further

25  legislative consideration.

26         Section 32.  Effective January 1, 2002, paragraph (a)

27  of subsection (1) of section 72.011, Florida Statutes, is

28  amended to read:

29         72.011  Jurisdiction of circuit courts in specific tax

30  matters; administrative hearings and appeals; time for

31  commencing action; parties; deposits.--

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  1         (1)(a)  A taxpayer may contest the legality of any

  2  assessment or denial of refund of tax, fee, surcharge, permit,

  3  interest, or penalty provided for under s. 125.0104, s.

  4  125.0108, chapter 198, chapter 199, chapter 201, chapter 202,

  5  chapter 203, chapter 206, chapter 207, chapter 210, chapter

  6  211, chapter 212, chapter 213, chapter 220, chapter 221, s.

  7  370.07(3), chapter 376, s. 403.717, s. 403.718, s. 403.7185,

  8  s. 403.7195, s. 538.09, s. 538.25, chapter 550, chapter 561,

  9  chapter 562, chapter 563, chapter 564, chapter 565, chapter

10  624, or s. 681.117 by filing an action in circuit court; or,

11  alternatively, the taxpayer may file a petition under the

12  applicable provisions of chapter 120. However, once an action

13  has been initiated under s. 120.56, s. 120.565, s. 120.569, s.

14  120.57, or s. 120.80(14)(b), no action relating to the same

15  subject matter may be filed by the taxpayer in circuit court,

16  and judicial review shall be exclusively limited to appellate

17  review pursuant to s. 120.68; and once an action has been

18  initiated in circuit court, no action may be brought under

19  chapter 120.

20         Section 33.  Effective January 1, 2002, section 213.05,

21  Florida Statutes, is amended to read:

22         213.05  Department of Revenue; control and

23  administration of revenue laws.--The Department of Revenue

24  shall have only those responsibilities for ad valorem taxation

25  specified to the department in chapter 192, taxation, general

26  provisions; chapter 193, assessments; chapter 194,

27  administrative and judicial review of property taxes; chapter

28  195, property assessment administration and finance; chapter

29  196, exemption; chapter 197, tax collections, sales, and

30  liens; chapter 199, intangible personal property taxes; and

31  chapter 200, determination of millage. The Department of

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  1  Revenue shall have the responsibility of regulating,

  2  controlling, and administering all revenue laws and performing

  3  all duties as provided in s. 125.0104, the Local Option

  4  Tourist Development Act; s. 125.0108, tourist impact tax;

  5  chapter 198, estate taxes; chapter 201, excise tax on

  6  documents; chapter 202, communications services tax; chapter

  7  203, gross receipts taxes; chapter 206, motor and other fuel

  8  taxes; chapter 211, tax on production of oil and gas and

  9  severance of solid minerals; chapter 212, tax on sales, use,

10  and other transactions; chapter 220, income tax code; chapter

11  221, emergency excise tax; ss. 336.021 and 336.025, taxes on

12  motor fuel and special fuel; s. 370.07(3), Apalachicola Bay

13  oyster surcharge; s. 376.11, pollutant spill prevention and

14  control; s. 403.718, waste tire fees; s. 403.7185, lead-acid

15  battery fees; s. 403.7195, waste newsprint disposal fees; s.

16  538.09, registration of secondhand dealers; s. 538.25,

17  registration of secondary metals recyclers; s. 624.4621, group

18  self-insurer's fund premium tax; s. 624.5091, retaliatory tax;

19  s. 624.475, commercial self-insurance fund premium tax; ss.

20  624.509-624.511, insurance code: administration and general

21  provisions; s. 624.515, State Fire Marshal regulatory

22  assessment; s. 627.357, medical malpractice self-insurance

23  premium tax; s. 629.5011, reciprocal insurers premium tax; and

24  s. 681.117, motor vehicle warranty enforcement.

25         Section 34.  Effective January 1, 2002, subsection (1)

26  of section 213.053, Florida Statutes, is amended, and

27  paragraph (r) is added to subsection (7) of that section, to

28  read:

29         213.053  Confidentiality and information sharing.--

30         (1)  The provisions of this section apply to s.

31  125.0104, county government; s. 125.0108, tourist impact tax;

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  1  chapter 175, municipal firefighters' pension trust funds;

  2  chapter 185, municipal police officers' retirement trust

  3  funds; chapter 198, estate taxes; chapter 199, intangible

  4  personal property taxes; chapter 201, excise tax on documents;

  5  chapter 202, communications services tax; chapter 203, gross

  6  receipts taxes; chapter 211, tax on severance and production

  7  of minerals; chapter 212, tax on sales, use, and other

  8  transactions; chapter 220, income tax code; chapter 221,

  9  emergency excise tax; s. 252.372, emergency management,

10  preparedness, and assistance surcharge; s. 370.07(3),

11  Apalachicola Bay oyster surcharge; chapter 376, pollutant

12  spill prevention and control; s. 403.718, waste tire fees; s.

13  403.7185, lead-acid battery fees; s. 403.7195, waste newsprint

14  disposal fees; s. 538.09, registration of secondhand dealers;

15  s. 538.25, registration of secondary metals recyclers; ss.

16  624.501 and 624.509-624.515, insurance code; s. 681.117, motor

17  vehicle warranty enforcement; and s. 896.102, reports of

18  financial transactions in trade or business.

19         (7)  Notwithstanding any other provision of this

20  section, the department may provide:

21         (r)  Information relative to chapter 202 to each local

22  government that imposes a tax pursuant to s. 202.19 in the

23  conduct of its official duties as specified in chapter 202.

24  Data provided under this paragraph shall not be disclosed to

25  any other person or entity other than a person or entity

26  directly responsible for administering the tax. Such data

27  shall not be used for any purpose other than for administering

28  the tax and assisting the department's administration of

29  chapter 202.

30

31

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  1  Disclosure of information under this subsection shall be

  2  pursuant to a written agreement between the executive director

  3  and the agency.  Such agencies, governmental or

  4  nongovernmental, shall be bound by the same requirements of

  5  confidentiality as the Department of Revenue.  Breach of

  6  confidentiality is a misdemeanor of the first degree,

  7  punishable as provided by s. 775.082 or s. 775.083.

  8         Section 35.  Effective January 1, 2002, subsection (6)

  9  of section 212.20, Florida Statutes, is amended to read:

10         212.20  Funds collected, disposition; additional powers

11  of department; operational expense; refund of taxes

12  adjudicated unconstitutionally collected.--

13         (6)  Distribution of all proceeds under this chapter

14  and s. 202.18(1)(b) and (2)(b) shall be as follows:

15         (a)  Proceeds from the convention development taxes

16  authorized under s. 212.0305 shall be reallocated to the

17  Convention Development Tax Clearing Trust Fund.

18         (b)  Proceeds from discretionary sales surtaxes imposed

19  pursuant to ss. 212.054 and 212.055 shall be reallocated to

20  the Discretionary Sales Surtax Clearing Trust Fund.

21         (c)  Proceeds from the tax imposed pursuant to s.

22  212.06(5)(a)2. shall be reallocated to the Mail Order Sales

23  Tax Clearing Trust Fund.

24         (d)  Proceeds from the fee imposed pursuant to s.

25  212.18(5) shall be deposited in the Solid Waste Management

26  Clearing Trust Fund, which is hereby created to be used by the

27  department, and shall be subsequently transferred to the State

28  Treasurer to be deposited into the Solid Waste Management

29  Trust Fund.

30

31

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  1         (e)  Proceeds from the fees imposed under ss.

  2  212.05(1)(i)3. and 212.18(3) shall remain with the General

  3  Revenue Fund.

  4         (f)  The proceeds of all other taxes and fees imposed

  5  pursuant to this chapter or remitted pursuant to s.

  6  202.18(1)(b) and (2)(b) shall be distributed as follows:

  7         1.  In any fiscal year, the greater of $500 million,

  8  minus an amount equal to 4.6 percent of the proceeds of the

  9  taxes collected pursuant to chapter 201, or 5 percent of all

10  other taxes and fees imposed pursuant to this chapter or

11  remitted pursuant to s. 202.18(1)(b) and (2)(b) shall be

12  deposited in monthly installments into the General Revenue

13  Fund.

14         2.  Two-tenths of one percent shall be transferred to

15  the Solid Waste Management Trust Fund.

16         3.  After the distribution under subparagraphs 1. and

17  2., 9.653 percent of the amount remitted by a sales tax dealer

18  located within a participating county pursuant to s. 218.61

19  shall be transferred into the Local Government Half-cent Sales

20  Tax Clearing Trust Fund.

21         4.  After the distribution under subparagraphs 1., 2.,

22  and 3., 0.054 percent shall be transferred to the Local

23  Government Half-cent Sales Tax Clearing Trust Fund and

24  distributed pursuant to s. 218.65.

25         5.  Of the remaining proceeds:

26         a.  Beginning July 1, 1992, $166,667 shall be

27  distributed monthly by the department to each applicant that

28  has been certified as a "facility for a new professional

29  sports franchise" or a "facility for a retained professional

30  sports franchise" pursuant to s. 288.1162 and $41,667 shall be

31  distributed monthly by the department to each applicant that

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  1  has been certified as a "new spring training franchise

  2  facility" pursuant to s. 288.1162. Distributions shall begin

  3  60 days following such certification and shall continue for 30

  4  years. Nothing contained herein shall be construed to allow an

  5  applicant certified pursuant to s. 288.1162 to receive more in

  6  distributions than actually expended by the applicant for the

  7  public purposes provided for in s. 288.1162(7). However, a

  8  certified applicant shall receive distributions up to the

  9  maximum amount allowable and undistributed under this section

10  for additional renovations and improvements to the facility

11  for the franchise without additional certification.

12         b.  Beginning 30 days after notice by the Office of

13  Tourism, Trade, and Economic Development to the Department of

14  Revenue that an applicant has been certified as the

15  professional golf hall of fame pursuant to s. 288.1168 and is

16  open to the public, $166,667 shall be distributed monthly, for

17  up to 300 months, to the applicant.

18         c.  Beginning 30 days after notice by the Department of

19  Commerce to the Department of Revenue that the applicant has

20  been certified as the International Game Fish Association

21  World Center facility pursuant to s. 288.1169, and the

22  facility is open to the public, $83,333 shall be distributed

23  monthly, for up to 180 months, to the applicant.  This

24  distribution is subject to reduction pursuant to s. 288.1169.

25         6.  All other proceeds shall remain with the General

26  Revenue Fund.

27         Section 36.  Paragraphs (e) and (f) of subsection (9)

28  of section 166.231, Florida Statutes, are amended to read:

29         166.231  Municipalities; public service tax.--

30

31

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  1         (9)  A municipality may levy a tax on the purchase of

  2  telecommunication services as defined in s. 203.012 as

  3  follows:

  4         (e)  Purchases of local telephone service or other

  5  telecommunications service for use in the conduct of a

  6  telecommunications service for hire or otherwise for resale,

  7  including resale of telecommunication services paid by using a

  8  prepaid calling arrangement as defined in s. 212.05(1)(e)1.a.,

  9  are exempt from the tax imposed by this subsection.

10         (f)  A seller of services which are subject to the tax

11  imposed by a municipality under this subsection shall file a

12  return with the municipality each month. The form of the

13  return shall be determined by the seller, and the return shall

14  be deemed sufficient if it identifies the name and address of

15  the seller, the period of the return, the amount collected

16  from the sale of taxable services, any collection allowance

17  taken, the amount of tax remitted with the return, and the

18  name and telephone number of a person authorized by the seller

19  to respond to inquiries from municipalities concerning the

20  seller's administration of the tax. A municipality may not

21  require any return or payment of public service tax other than

22  on a date returns and payments of tax are required under

23  chapter 212. However, a municipality may grant an extension of

24  the due date for a return or payment upon written request from

25  the seller. The deduction authorized by paragraph (b) shall

26  not be allowed in the event of an untimely return, unless the

27  seller has in writing requested and been granted an extension

28  of time for filing such return. Extensions of time shall be

29  granted if reasonable cause is shown, whether requested before

30  or after the due date of the return. Notwithstanding any other

31

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  1  provision of law, the public service tax shall not be

  2  collected at point of sale on prepaid calling arrangements.

  3         Section 37.  Effective July 1, 2000, all taxes that

  4  have been collected pursuant to section 166.231(9)(f), Florida

  5  Statutes, at the point of sale on prepaid calling arrangements

  6  prior to July 1, 2000, must be remitted, and taxes that have

  7  been collected at the point of sale on prepaid calling

  8  arrangements and remitted before July 1, 2000, are not subject

  9  to refund. Any taxes that were not collected pursuant to

10  section 166.231(9)(f), Florida Statutes, prior to July 1,

11  2000, at the point of sale on prepaid calling arrangements

12  need not be paid and are forgiven.

13         Section 38.  Effective January 1, 2002, and applicable

14  to communications services reflected on bills dated on or

15  after that date, subsection (9) of section 166.231, Florida

16  Statutes, as amended by this act, is repealed, and subsections

17  (2), (5), (7), and (10) of that section are amended to read:

18         166.231  Municipalities; public service tax.--

19         (2)  Services competitive with those enumerated in

20  subsection (1) or subsection (9), as defined by ordinance,

21  shall be taxed on a comparable base at the same rates.

22  However, fuel oil shall be taxed at a rate not to exceed 4

23  cents per gallon. However, for municipalities levying less

24  than the maximum rate allowable in subsection (1), the maximum

25  tax on fuel oil shall bear the same proportion to 4 cents

26  which the tax rate levied under subsection (1) bears to the

27  maximum rate allowable in subsection (1).

28         (5)  Purchases by the United States Government, this

29  state, and all counties, school districts, and municipalities

30  of the state, and by public bodies exempted by law or court

31  order, are exempt from the tax authorized by this section. A

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  1  municipality may exempt from the tax imposed by this section

  2  the purchase of taxable items by any other public body as

  3  defined in s. 1.01, or by a nonprofit corporation or

  4  cooperative association organized under chapter 617 which

  5  provides water utility services to no more than 13,500

  6  equivalent residential units, ownership of which will revert

  7  to a political subdivision upon retirement of all outstanding

  8  indebtedness, and shall exempt purchases by any recognized

  9  church in this state for use exclusively for church purposes,

10  and shall exempt from the tax authorized by subsection (9)

11  purchases made by any religious institution that possesses a

12  consumer certificate of exemption issued under chapter 212.

13         (7)  The tax authorized hereunder shall be collected by

14  the seller of the taxable item from the purchaser at the time

15  of the payment for such service.  The seller shall remit the

16  taxes collected to the municipality in the manner prescribed

17  by ordinance, except that remittance of taxes by sellers of

18  telecommunication services shall be governed by paragraph

19  (9)(f). Except as otherwise provided in ss. 166.233 and

20  166.234, the seller shall be liable for taxes that are due and

21  not remitted to the municipality. This shall not bar the

22  seller from recovering such taxes from purchasers; however,

23  the universities in the State University System shall not be

24  deemed a seller of any item otherwise taxable hereunder when

25  such item is provided to university residences incidental to

26  the provision of educational services.

27         (10)  A purchaser who claims an exemption under

28  subsection (4) or, subsection (5), or paragraph (9)(e) shall

29  certify to the seller that he or she qualifies for the

30  exemption, which certification may encompass all purchases

31  after a specified date or other multiple purchases. For

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  1  purchases made under paragraph (9)(e) which are exempted, upon

  2  the presentation of a certificate, from the tax imposed by

  3  chapter 212, the certification required by this subsection may

  4  be satisfied by presentation of a certificate that satisfies

  5  the requirements of chapter 212. A seller accepting the

  6  certification required by this subsection is relieved of the

  7  obligation to collect and remit tax; however, a governmental

  8  body that is exempt from the tax authorized by this section

  9  shall not be required to furnish such certification, and a

10  seller is not required to collect tax from such an exempt

11  governmental body.

12         Section 39.  Effective January 1, 2002, paragraph (c)

13  of subsection (1) and subsection (2) of section 166.233,

14  Florida Statutes, are amended to read:

15         166.233  Public service tax; effective dates;

16  procedures for informing sellers of tax levies and related

17  information.--

18         (1)  As used in this section and ss. 166.231, 166.232,

19  and 166.234:

20         (c)  "Levy" means and includes the imposition of a tax

21  under s. 166.231 or s. 166.232 and, all changes in the rate of

22  a tax imposed under either of those sections, and all changes

23  of election under s. 166.231(9)(a).

24         (2)(a)  A tax levy must be adopted by ordinance, and

25  the effective date of every levy or repeal thereof must be a

26  subsequent January 1, April 1, July 1, or October 1. A

27  municipality shall notify the department of the adoption or

28  repeal of a levy at least 120 days before the effective date

29  thereof. Such notification must be furnished on a form

30  prescribed by the department and must specify the services

31  taxed under the authority of s. 166.231 or s. 166.232,

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  1  including any election under s. 166.231(9)(a), the rate of tax

  2  applied to each service, the effective date of the levy or

  3  repeal thereof, and the name, mailing address, and telephone

  4  number of a person designated by the municipality to respond

  5  to inquiries concerning the tax. The department shall maintain

  6  this information for the purpose of responding to inquiries

  7  with respect thereto, and any person may, in writing, request

  8  such information from the department. For purposes of this

  9  section, a response to such a person is timely if in writing

10  and dated no later than 20 days after the receipt of the

11  request. The department shall charge such persons a fee to

12  recover the actual cost of maintaining and furnishing such

13  information. The department has no liability for any loss of

14  or decrease in revenue by reason of any error, omission, or

15  untimely action that results in the nonpayment of the tax

16  imposed under s. 166.231 or s. 166.232. The provisions of this

17  paragraph which prescribe effective dates and require

18  municipalities to furnish notifications to the department do

19  not apply to taxes levied on service, other than

20  telecommunication service, provided by the municipality

21  levying the tax or by a separate utility authority, board, or

22  commission of the municipality.

23         (b)  The department may contract with a private entity

24  to maintain and furnish the information described in paragraph

25  (a); however, the department shall establish the fee charged

26  to persons requesting that information.

27         Section 40.  Subsections (3) and (4) of section 203.01,

28  Florida Statutes, are amended to read:

29         203.01  Tax on gross receipts for utility services.--

30         (3)  The term "gross receipts" as used herein does not

31  include gross receipts of any person derived from:

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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 41.  Effective January 1, 2002, and applicable

12  to communications services reflected on bills dated on or

13  after that date, section 203.01, Florida Statutes, as amended

14  by this act, is amended to read:

15         203.01  Tax on gross receipts for utility and

16  communications services.--

17         (1)(a)1.  Every person that receives payment for any

18  utility service shall report by the last day of each month to

19  the Department of Revenue, under oath of the secretary or some

20  other officer of such person, the total amount of gross

21  receipts derived from business done within this state, or

22  between points within this state, for the preceding month and,

23  at the same time, shall pay into the State Treasury an amount

24  equal to a percentage of such gross receipts at the rate set

25  forth in paragraph (b).  Such collections shall be certified

26  by the Comptroller upon the request of the State Board of

27  Education.

28         2.  A tax is levied on communications services as

29  defined in s. 202.11(3). Such tax shall be applied to the same

30  services and transactions as are subject to taxation under

31  chapter 202, and to communications services that are subject

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  1  to the exemption provided in s. 202.125(1). Such tax shall be

  2  applied to the sales price of communications services when

  3  sold at retail and to the actual cost of operating substitute

  4  communications systems, as such terms are defined in s.

  5  202.11, shall be due and payable at the same time as the taxes

  6  imposed pursuant to chapter 202, and shall be administered and

  7  collected pursuant to the provisions of chapter 202.

  8         (b)  Beginning July 1, 1992, and thereafter, The rate

  9  applied to utility services shall be 2.5 percent. The rate

10  applied to communications services shall be 2.2 percent.

11         (c)  Any person who purchases, installs, rents, or

12  leases a telephone system or telecommunication system for his

13  or her own use to provide that person with telephone service

14  or telecommunication service which is a substitute for any

15  telephone company switched service or a substitute for any

16  dedicated facility by which a telephone company provides a

17  communication path shall register with the Department of

18  Revenue and pay into the State Treasury a yearly amount equal

19  to a percentage of the actual cost of operating such system at

20  the rate set forth in paragraph (b). "Actual cost" includes,

21  but is not limited to, depreciation, interest, maintenance,

22  repair, and other expenses directly attributable to the

23  operation of such system.  For purposes of this paragraph, the

24  depreciation expense to be included in actual cost shall be

25  the depreciation expense claimed for federal income tax

26  purposes. The total amount of any payment required by a lease

27  or rental contract or agreement shall be included within the

28  actual cost.  The provisions of this paragraph do not apply to

29  the use by any local telephone company or any

30  telecommunication carrier of its own telephone system or

31  telecommunication system to conduct a telecommunication

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  1  service for hire or to the use of any radio system operated by

  2  any county or municipality or by the state or any political

  3  subdivision thereof.  If a system described in this paragraph

  4  is located in more than one state, the actual cost of such

  5  system for purposes of this paragraph shall be the actual cost

  6  of the system's equipment located in Florida.  The term

  7  "telecommunications carrier" specifically includes cellular

  8  telephone carriers and other radio common carriers.

  9         (c)(d)  Electricity produced by cogeneration or by

10  small power producers which is transmitted and distributed by

11  a public utility between two locations of a customer of the

12  utility pursuant to s. 366.051 is subject to the tax imposed

13  by this section.  The tax shall be applied to the cost price

14  of such electricity as provided in s. 212.02(4) and shall be

15  paid each month by the producer of such electricity.

16         (d)(e)  Electricity produced by cogeneration or by

17  small power producers during the 12-month period ending June

18  30 of each year which is in excess of nontaxable electricity

19  produced during the 12-month period ending June 30, 1990, is

20  subject to the tax imposed by this section.  The tax shall be

21  applied to the cost price of such electricity as provided in

22  s. 212.02(4) and shall be paid each month, beginning with the

23  month in which total production exceeds the production of

24  nontaxable electricity for the 12-month period ending June 30,

25  1990.  For purposes of this paragraph, "nontaxable

26  electricity" means electricity produced by cogeneration or by

27  small power producers which is not subject to tax under

28  paragraph (c) (d).  Taxes paid pursuant to paragraph (c) (d)

29  may be credited against taxes due under this paragraph.

30  Electricity generated as part of an industrial manufacturing

31  process which manufactures products from phosphate rock, raw

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  1  wood fiber, paper, citrus or any agricultural product shall

  2  not be subject to the tax imposed by this paragraph.

  3  "Industrial manufacturing process" means the entire process

  4  conducted at the location where the process takes place.

  5         (e)(f)  Any person other than a cogenerator or small

  6  power producer described in paragraph (d) (e) who produces for

  7  his or her own use electrical energy which is a substitute for

  8  electrical energy produced by an electric utility as defined

  9  in s. 366.02 is subject to the tax imposed by this section.

10  The tax shall be applied to the cost price of such electrical

11  energy as provided in s. 212.02(4) and shall be paid each

12  month.  The provisions of this paragraph do not apply to any

13  electrical energy produced and used by an electric utility.

14         (2)(a)  In addition to any other penalty provided by

15  law, any person who fails to timely report and pay any tax

16  imposed on gross receipts from utility services under this

17  chapter shall pay a penalty equal to 10 percent of any unpaid

18  tax, if the failure is for less than 31 days, plus an

19  additional 10 percent of any unpaid tax for each additional 30

20  days or fraction thereof.  However, such penalty may not be

21  less than $10 or exceed a total of 50 percent in the aggregate

22  of any unpaid tax.

23         (b)  In addition to any other penalty provided by law,

24  any person who falsely or fraudulently reports or unlawfully

25  attempts to evade paying any tax imposed on gross receipts

26  from utility services under this chapter shall pay a penalty

27  equal to 100 percent of any tax due and is guilty of a

28  misdemeanor of the second degree, punishable as provided under

29  s. 775.082 or s. 775.083.

30         (3)  The term "gross receipts" as used herein does not

31  include gross receipts of any person derived from:

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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; or

  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         (4)(5)  The tax imposed pursuant to this chapter part

12  relating to the provision of any utility services at the

13  option of the person supplying the taxable services may be

14  separately stated as Florida gross receipts tax on the total

15  amount of any bill, invoice, or other tangible evidence of the

16  provision of such taxable services and may be added as a

17  component part of the total charge. Whenever a provider of

18  taxable services elects to separately state such tax as a

19  component of the charge for the provision of such taxable

20  services, every person, including all governmental units,

21  shall remit the tax to the person who provides such taxable

22  services as a part of the total bill, and the tax is a

23  component part of the debt of the purchaser to the person who

24  provides such taxable services until paid and, if unpaid, is

25  recoverable at law in the same manner as any other part of the

26  charge for such taxable services.  For a utility, the decision

27  to separately state any increase in the rate of tax imposed by

28  this chapter part which is effective after December 31, 1989,

29  and the ability to recover the increased charge from the

30  customer shall not be subject to regulatory approval.

31

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  1         (5)(6)  The tax is imposed upon every person for the

  2  privilege of conducting a utility or communications services

  3  business, and each provider of the taxable services remains

  4  fully and completely liable for the tax, even if the tax is

  5  separately stated as a line item or component of the total

  6  bill.

  7         (6)(7)  Any person who provides such services and who

  8  fails, neglects, or refuses to remit the tax imposed in this

  9  chapter part, either by himself or herself, or through agents

10  or employees, is liable for the tax and is guilty of a

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

12  775.082 or s. 775.083.

13         (7)(8)  Gross receipts subject to the tax imposed by

14  this section for the provision of electricity shall include

15  receipts from monthly customer charges or monthly customer

16  facility charges.

17         (9)(a)  If the sale of a taxable telecommunication

18  service also involves the sale of commercial or cable

19  television service exempt under the provision of s.

20  203.012(2)(b)2., the tax shall be applied to the value of the

21  taxable service when it is sold separately.

22         (b)  If the company does not offer this service

23  separately, the consideration paid shall be separately

24  identified and stated with respect to the taxable and exempt

25  portions of the transaction as a condition of the exemption.

26         (c)  The amounts identified as taxable in paragraph (b)

27  shall not be less than the statewide average tariff rates set

28  forth by the local exchange telecommunications companies in

29  the tariffs filed with the Public Service Commission on

30  January 1, 1995, and on January 1 of each year thereafter for

31  the equivalent services subject to the provisions of this

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  1  section.  The Public Service Commission shall publish the

  2  statewide average tariff rates for commonly used services

  3  annually, beginning on January 1, 1996.

  4         (8)(10)  Notwithstanding the provisions of subsection

  5  (4) (5) and s. 212.07(2), sums that were charged or billed as

  6  taxes under this section and chapter 212 and that were

  7  remitted to the state in full as taxes shall not be subject to

  8  refund by the state or by the utility or other person that

  9  which remitted the sums, when the amount remitted was not in

10  excess of the amount of tax imposed by chapter 212 and this

11  section.

12         Section 42.  Effective January 1, 2002, section

13  203.012, Florida Statutes, is amended to read:

14         203.012  Definitions.--As used in this chapter:

15         (1)  The term "access charge" or "right of access"

16  means any charge to any person for the right to use or for the

17  use of a telephone system which includes equipment,

18  facilities, or services to originate or terminate any of the

19  services defined in subsection (4), subsection (5), subsection

20  (6), or subsection (7) and which specifically includes

21  customer access line charges, which includes the gross amount

22  paid by subscribers and users in this state for access into

23  the intrastate or interstate interexchange network as

24  authorized by the Federal Communications Commission or the

25  Florida Public Service Commission.

26         (2)(a)  Gross receipts from telecommunication services

27  include the gross receipts for all telecommunication services

28  of whatever nature, including, but not limited to, access

29  charges and charges for right of access; residential and

30  business 1-party, 2-party, and 4-party rotary charges; centrex

31  charges; directory assistance charges; public telephone

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  1  charges; touch-tone charges; emergency number charges; private

  2  branch exchange message charges; public announcement service

  3  charges; dial-it charges; local area data transport charges;

  4  key lines charges; private branch exchange trunk-flat rate

  5  charges; and directory listing charges other than yellow-page

  6  classified listing charges.

  7         (b)  Gross receipts for telecommunication services do

  8  not include:

  9         1.  Charges for customer premises equipment, including

10  such equipment that is leased or rented by the customer from

11  any source;

12         2.  Charges made to the public for commercial or cable

13  television, unless it is used for two-way communication;

14  however, if such two-way communication service is separately

15  billed, only the charges made for two-way communication

16  service will be subject to tax hereunder;

17         3.  Charges made by hotels and motels, which are

18  required under the provisions of s. 212.03 to collect

19  transient rentals tax from tenants and lessees, for local

20  telephone service or toll telephone service, when such charge

21  occurs incidental to the right of occupancy in such hotel or

22  motel;

23         4.  Connection and disconnection charges; move or

24  change charges; suspension of service charges; and service

25  order, number change, and restoration charges; or

26         5.  Charges for services or items of equipment supplied

27  by providers of the telecommunication services described in

28  paragraph (5)(b), such as maintenance charges, equipment

29  sales, or rental which are incidental to the provision of such

30  telecommunication services, provided such charges are

31  separately stated, itemized, or described on the bill,

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  1  invoice, or other tangible evidence of the provision of such

  2  service.

  3         (3)  The term "local telephone service" means:

  4         (a)  The access to a local telephone system, and the

  5  privilege of telephonic-quality communication with

  6  substantially all persons having telephone or radio telephone

  7  stations constituting a part of such local telephone system;

  8  or

  9         (b)  Any facility or service provided in connection

10  with a service described in paragraph (a).

11

12  The term "local telephone service" does not include any

13  service which is a toll telephone service; private

14  communication service; cellular mobile telephone or

15  telecommunication service; specialized mobile radio, or pagers

16  and paging, service, including but not limited to "beepers"

17  and any other form of mobile and portable one-way or two-way

18  communication; or teletypewriter service.

19         (4)  The term "private communication service" means:

20         (a)  A communication service furnished to a subscriber

21  or user that entitles the subscriber or user to exclusive or

22  priority use of a communication channel or groups of channels,

23  or to the use of an intercommunication system for the

24  subscriber's stations, regardless of whether such channel,

25  groups of channels, or intercommunication system may be

26  connected through switching with a service described in

27  subsection (3), subsection (6), or subsection (7);

28         (b)  Switching capacity, extension lines, and stations,

29  or other associated services which are provided in connection

30  with, and which are necessary or unique to the use of,

31  channels or systems described in paragraph (a); or

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  1         (c)  The channel mileage which connects a telephone

  2  station located outside a local telephone system area with a

  3  central office in such local telephone system.

  4         (5)  The term "telecommunication service" means:

  5         (a)  Local telephone service, toll telephone service,

  6  telegram or telegraph service, teletypewriter service, or

  7  private communication service; or

  8         (b)  Cellular mobile telephone or telecommunication

  9  service; or specialized mobile radio, and pagers and paging,

10  service, including but not limited to "beepers" and any other

11  form of mobile and portable one-way or two-way communication;

12  but does not include services or equipment incidental to

13  telecommunication services enumerated in this paragraph such

14  as maintenance of customer premises equipment, whether owned

15  by the customer or not, or equipment sales or rental for which

16  charges are separately stated, itemized, or described on the

17  bill, invoice, or other tangible evidence of the provision of

18  such service.

19

20  The term "telecommunication service" does not include any

21  Internet access service, electronic mail service, electronic

22  bulletin board service, or similar on-line computer service.

23         (6)  The term "teletypewriter service" means the access

24  from a teletypewriter, telephone, or other data station of

25  which such station is a part, and the privilege of

26  intercommunication by such station with substantially all

27  persons having teletypewriter, telephone, or other data

28  stations constituting a part of the same teletypewriter

29  system, to which the subscriber or user is entitled upon

30  payment of a charge or charges, whether such charge or charges

31  are determined as a flat periodic amount, on the basis of

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  1  distance and elapsed transmission time, or some other method.

  2  The term "teletypewriter service" does not include local

  3  telephone service or toll telephone service.

  4         (7)  The term "toll telephone service" means:

  5         (a)  A telephonic-quality communication for which there

  6  is a toll charge which varies in amount with the distance and

  7  elapsed transmission time of each individual communication; or

  8         (b)  A service which entitles the subscriber or user,

  9  upon the payment of a periodic charge which is determined as a

10  flat amount or upon the basis of total elapsed transmission

11  time, to the privilege of an unlimited number of telephonic

12  communications to or from all or a substantial portion of the

13  persons having telephone or radio telephone stations in a

14  specified area which is outside the local telephone system

15  area in which the station provided with this service is

16  located.

17

18  The term "toll telephone service" includes interstate and

19  intrastate wide-area telephone service charges.

20         (8)  The term "interstate," as applied to

21  telecommunication services, means originating in this state

22  but not terminating in this state, or terminating in this

23  state but not originating in this state.

24         (1)(9)  The term "Utility service" means electricity

25  for light, heat, or power; and natural or manufactured gas for

26  light, heat, or power; or telecommunication services.

27         (2)(10)  The term "Person" means any person as defined

28  in s. 212.02.

29         Section 43.  Effective January 1, 2002, sections

30  203.013, 203.60, 203.61, 203.62, and 203.63, Florida Statutes,

31  are repealed.

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  1         Section 44.  Paragraph (e) of subsection (1) of section

  2  212.05, Florida Statutes, is amended to read:

  3         212.05  Sales, storage, use tax.--It is hereby declared

  4  to be the legislative intent that every person is exercising a

  5  taxable privilege who engages in the business of selling

  6  tangible personal property at retail in this state, including

  7  the business of making mail order sales, or who rents or

  8  furnishes any of the things or services taxable under this

  9  chapter, or who stores for use or consumption in this state

10  any item or article of tangible personal property as defined

11  herein and who leases or rents such property within the state.

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

13  levied on each taxable transaction or incident, which tax is

14  due and payable as follows:

15         (e)1.  At the rate of 6 percent on charges for:

16         a.  All telegraph messages and long-distance telephone

17  calls beginning and terminating in this state,

18  telecommunication service as defined in s. 203.012, and those

19  services described in s. 203.012(2)(a), except that the tax

20  rate for charges for telecommunication service other than

21  charges for prepaid calling arrangements is 7 percent. The tax

22  on charges for prepaid calling arrangements calls made with a

23  prepaid telephone calling card shall be collected at the time

24  of sale and remitted by the selling dealer selling or

25  recharging a prepaid telephone card.

26         (I)  "Prepaid calling arrangement" means the separately

27  stated retail sale by advance payment of communications

28  services that consist exclusively of telephone calls

29  originated by using an access number, authorization code, or

30  other means that may be manually, electronically, or otherwise

31  entered and that are sold in predetermined units or dollars

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  1  whose number declines with use in a known amount. A prepaid

  2  telephone card or authorization number means the right to

  3  exclusively make telephone calls that must be paid for in

  4  advance and that enable the origination of calls using an

  5  access number, prepaid mobile account, or authorization code,

  6  whether manually or electronically dialed.

  7         (II)  If the sale or recharge of the prepaid telephone

  8  calling arrangement card does not take place at the dealer's

  9  place of business, it shall be deemed to take place at the

10  customer's shipping address or, if no item is shipped, at the

11  customer's address or the location associated with the

12  customer's mobile telephone number.

13         (III)  The sale or recharge of a prepaid calling

14  arrangement shall be treated as a sale of tangible personal

15  property for purposes of this chapter, whether or not a

16  tangible item evidencing such arrangement is furnished to the

17  purchaser, and such sale within this state phone card

18  constitutes property in this state and subjects the selling

19  dealer to the jurisdiction of this state for purposes of this

20  subsection. Notwithstanding any other provision of this

21  sub-sub-subparagraph, the sale of telecommunication services

22  to a person who furnishes telecommunication services pursuant

23  to a prepaid calling arrangement is deemed a sale for resale,

24  and a dealer selling telecommunication services to such a

25  person shall accept a resale certificate in lieu of the tax,

26  in accordance with rules of the department.

27         b.  Any television system program service.

28         c.  The installation of telecommunication and

29  telegraphic equipment.

30         d.  Electrical power or energy, except that the tax

31  rate for charges for electrical power or energy is 7 percent.

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  1         2.  For purposes of this chapter, "television system

  2  program service" means the transmitting, by any means, of any

  3  audio or video signal to a subscriber for other than

  4  retransmission, or the installing, connecting, reconnecting,

  5  disconnecting, moving, or changing of any equipment related to

  6  such service.  For purposes of this chapter, the term

  7  "telecommunication service" does not include local service

  8  provided through a pay telephone. The provisions of s.

  9  212.17(3), regarding credit for tax paid on charges

10  subsequently found to be worthless, shall be equally

11  applicable to any tax paid under the provisions of this

12  section on charges for prepaid calling arrangements,

13  telecommunication or telegraph services, or electric power

14  subsequently found to be uncollectible. The word "charges" in

15  this paragraph does not include any excise or similar tax

16  levied by the Federal Government, any political subdivision of

17  the state, or any municipality upon the purchase, or sale, or

18  recharge of prepaid calling arrangements or upon the purchase

19  or sale of telecommunication, television system program, or

20  telegraph service or electric power, which tax is collected by

21  the seller from the purchaser.

22         3.  Telegraph messages and telecommunication services

23  which originate or terminate in this state, other than

24  interstate private communication services, and are billed to a

25  customer, telephone number, or device located within this

26  state are taxable under this paragraph.  Interstate private

27  communication services are taxable under this paragraph as

28  follows:

29         a.  One hundred percent of the charge imposed at each

30  channel termination point within this state;

31

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  1         b.  One hundred percent of the charge imposed for the

  2  total channel mileage between each channel termination point

  3  within this state; and

  4         c.  The portion of the interstate interoffice channel

  5  mileage charge as determined by multiplying said charge times

  6  a fraction, the numerator of which is the air miles between

  7  the last channel termination point in this state and the

  8  vertical and horizontal coordinates, 7856 and 1756,

  9  respectively, and the denominator of which is the air miles

10  between the last channel termination point in this state and

11  the first channel termination point outside this state.  The

12  denominator of this fraction shall be adjusted, if necessary,

13  by adding the numerator of said fraction to similarly

14  determined air miles in the state in which the other channel

15  termination point is located, so that the summation of the

16  apportionment factor for this state and the apportionment

17  factor for the other state is not greater than one, to ensure

18  that no more than 100 percent of the interstate interoffice

19  channel mileage charge can be taxed by this state and another

20  state.

21         4.  The tax imposed pursuant to this paragraph shall

22  not exceed $50,000 per calendar year on charges to any person

23  for interstate telecommunications services defined in s.

24  203.012(4) and (7)(b), if the majority of such services used

25  by such person are for communications originating outside of

26  this state and terminating in this state.  This exemption

27  shall only be granted to holders of a direct pay permit issued

28  pursuant to this subparagraph.  No refunds shall be given for

29  taxes paid prior to receiving a direct pay permit. Upon

30  application, the department may issue a direct pay permit to

31  the purchaser of telecommunications services authorizing such

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  1  purchaser to pay tax on such services directly to the

  2  department. Any vendor furnishing telecommunications services

  3  to the holder of a valid direct pay permit shall be relieved

  4  of the obligation to collect and remit the tax on such

  5  service. Tax payments and returns pursuant to a direct pay

  6  permit shall be monthly. For purposes of this subparagraph,

  7  the term "person" shall be limited to a single legal entity

  8  and shall not be construed as meaning a group or combination

  9  of affiliated entities or entities controlled by one person or

10  group of persons.

11         5.  If the sale of a television system program service,

12  as defined in this paragraph, also involves the sale of an

13  item exempt under s. 212.08(7)(j), the tax shall be applied to

14  the value of the taxable service when it is sold separately.

15  If the company does not offer this service separately, the

16  consideration paid shall be separately identified and stated

17  with respect to the taxable and exempt portions of the

18  transaction as a condition of the exemption, except that the

19  amount identified as taxable shall not be less than the cost

20  of the service.

21         Section 45.  Effective July 1, 2000, all taxes that

22  have been collected pursuant to section 212.05(1)(e), Florida

23  Statutes, at the point of sale on prepaid calling arrangements

24  before July 1, 2000, must be remitted, and taxes that have

25  been collected at the point of sale on prepaid calling

26  arrangements and remitted before July 1, 2000, are not subject

27  to refund. Any taxes that were not collected pursuant to

28  section 212.05(1)(e) before July 1, 2000, at point of sale on

29  prepaid calling arrangements need not be paid and are

30  forgiven.

31

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  1         Section 46.  Paragraph (b) of subsection (2) of section

  2  212.054, Florida Statutes, is amended to read:

  3         212.054  Discretionary sales surtax; limitations,

  4  administration, and collection.--

  5         (2)

  6         (b)  However:

  7         1.  The tax on any sales amount above $5,000 on any

  8  item of tangible personal property and on long-distance

  9  telephone service shall not be subject to the surtax.

10  However, charges for prepaid calling arrangements, as defined

11  in s. 212.05(1)(e)1.a., shall be subject to the surtax. For

12  purposes of administering the $5,000 limitation on an item of

13  tangible personal property, if two or more taxable items of

14  tangible personal property are sold to the same purchaser at

15  the same time and, under generally accepted business practice

16  or industry standards or usage, are normally sold in bulk or

17  are items that, when assembled, comprise a working unit or

18  part of a working unit, such items must be considered a single

19  item for purposes of the $5,000 limitation when supported by a

20  charge ticket, sales slip, invoice, or other tangible evidence

21  of a single sale or rental. The limitation provided in this

22  subparagraph does not apply to the sale of any other service.

23         2.  In the case of utility, telecommunication, or

24  television system program services billed on or after the

25  effective date of any such surtax, the entire amount of the

26  charge tax for utility, telecommunication, or television

27  system program services shall be subject to the surtax.  In

28  the case of utility, telecommunication, or television system

29  program services billed after the last day the surtax is in

30  effect, the entire amount of the charge tax on said items

31  shall not be subject to the surtax.

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  1         3.  In the case of written contracts which are signed

  2  prior to the effective date of any such surtax for the

  3  construction of improvements to real property or for

  4  remodeling of existing structures, the surtax shall be paid by

  5  the contractor responsible for the performance of the

  6  contract.  However, the contractor may apply for one refund of

  7  any such surtax paid on materials necessary for the completion

  8  of the contract.  Any application for refund shall be made no

  9  later than 15 months following initial imposition of the

10  surtax in that county.  The application for refund shall be in

11  the manner prescribed by the department by rule.  A complete

12  application shall include proof of the written contract and of

13  payment of the surtax.  The application shall contain a sworn

14  statement, signed by the applicant or its representative,

15  attesting to the validity of the application.  The department

16  shall, within 30 days after approval of a complete

17  application, certify to the county information necessary for

18  issuance of a refund to the applicant. Counties are hereby

19  authorized to issue refunds for this purpose and shall set

20  aside from the proceeds of the surtax a sum sufficient to pay

21  any refund lawfully due.  Any person who fraudulently obtains

22  or attempts to obtain a refund pursuant to this subparagraph,

23  in addition to being liable for repayment of any refund

24  fraudulently obtained plus a mandatory penalty of 100 percent

25  of the refund, is guilty of a felony of the third degree,

26  punishable as provided in s. 775.082, s. 775.083, or s.

27  775.084.

28         4.  In the case of any vessel, railroad, or motor

29  vehicle common carrier entitled to partial exemption from tax

30  imposed under this chapter pursuant to s. 212.08(4), (8), or

31  (9), the basis for imposition of surtax shall be the same as

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  1  provided in s. 212.08 and the ratio shall be applied each

  2  month to total purchases in this state of property qualified

  3  for proration which is delivered or sold in the taxing county

  4  to establish the portion used and consumed in intracounty

  5  movement and subject to surtax.

  6         Section 47.  Effective January 1, 2002, and applicable

  7  to communications services reflected on bills dated on or

  8  after that date, paragraph (e) of subsection (1) of section

  9  212.05, Florida Statutes, as amended by this act, is amended

10  to read:

11         212.05  Sales, storage, use tax.--It is hereby declared

12  to be the legislative intent that every person is exercising a

13  taxable privilege who engages in the business of selling

14  tangible personal property at retail in this state, including

15  the business of making mail order sales, or who rents or

16  furnishes any of the things or services taxable under this

17  chapter, or who stores for use or consumption in this state

18  any item or article of tangible personal property as defined

19  herein and who leases or rents such property within the state.

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

21  levied on each taxable transaction or incident, which tax is

22  due and payable as follows:

23         (e)1.  At the rate of 6 percent on charges for:

24         a.  Prepaid calling arrangements. All telegraph

25  messages and long-distance telephone calls beginning and

26  terminating in this state, telecommunication service as

27  defined in s. 203.012, and those services described in s.

28  203.012(2)(a), except that the tax rate for charges for

29  telecommunication service other than charges for prepaid

30  calling arrangements is 7 percent. The tax on charges for

31

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  1  prepaid calling arrangements shall be collected at the time of

  2  sale and remitted by the selling dealer.

  3         (I)  "Prepaid calling arrangement" means the separately

  4  stated retail sale by advance payment of communications

  5  services that consist exclusively of telephone calls

  6  originated by using an access number, authorization code, or

  7  other means that may be manually, electronically, or otherwise

  8  entered and that are sold in predetermined units or dollars

  9  whose number declines with use in a known amount.

10         (II)  If the sale or recharge of the prepaid calling

11  arrangement does not take place at the dealer's place of

12  business, it shall be deemed to take place at the customer's

13  shipping address or, if no item is shipped, at the customer's

14  address or the location associated with the customer's mobile

15  telephone number.

16         (III)  The sale or recharge of a prepaid calling

17  arrangement shall be treated as a sale of tangible personal

18  property for purposes of this chapter, whether or not a

19  tangible item evidencing such arrangement is furnished to the

20  purchaser, and such sale within this state subjects the

21  selling dealer to the jurisdiction of this state for purposes

22  of this subsection. Notwithstanding any other provision of

23  this sub-sub-subparagraph, the sale of telecommunication

24  services to a person who furnishes telecommunication services

25  pursuant to a prepaid calling arrangement is deemed a sale for

26  resale, and a dealer selling telecommunication services to

27  such a person shall accept a resale certificate in lieu of the

28  tax, in accordance with rules of the department.

29         b.  Any television system program service.

30         b.c.  The installation of telecommunication and

31  telegraphic equipment.

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  1         c.d.  Electrical power or energy, except that the tax

  2  rate for charges for electrical power or energy is 7 percent.

  3         2.  For purposes of this chapter, "television system

  4  program service" means the transmitting, by any means, of any

  5  audio or video signal to a subscriber for other than

  6  retransmission, or the installing, connecting, reconnecting,

  7  disconnecting, moving, or changing of any equipment related to

  8  such service.  For purposes of this chapter, the term

  9  "telecommunication service" does not include local service

10  provided through a pay telephone. The provisions of s.

11  212.17(3), regarding credit for tax paid on charges

12  subsequently found to be worthless, shall be equally

13  applicable to any tax paid under the provisions of this

14  section on charges for prepaid calling arrangements,

15  telecommunication or telegraph services, or electric power

16  subsequently found to be uncollectible. The word "charges" in

17  this paragraph does not include any excise or similar tax

18  levied by the Federal Government, any political subdivision of

19  the state, or any municipality upon the purchase, sale, or

20  recharge of prepaid calling arrangements or upon the purchase

21  or sale of telecommunication, television system program, or

22  telegraph service or electric power, which tax is collected by

23  the seller from the purchaser.

24         3.  Telegraph messages and telecommunication services

25  which originate or terminate in this state, other than

26  interstate private communication services, and are billed to a

27  customer, telephone number, or device located within this

28  state are taxable under this paragraph.  Interstate private

29  communication services are taxable under this paragraph as

30  follows:

31

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  1         a.  One hundred percent of the charge imposed at each

  2  channel termination point within this state;

  3         b.  One hundred percent of the charge imposed for the

  4  total channel mileage between each channel termination point

  5  within this state; and

  6         c.  The portion of the interstate interoffice channel

  7  mileage charge as determined by multiplying said charge times

  8  a fraction, the numerator of which is the air miles between

  9  the last channel termination point in this state and the

10  vertical and horizontal coordinates, 7856 and 1756,

11  respectively, and the denominator of which is the air miles

12  between the last channel termination point in this state and

13  the first channel termination point outside this state.  The

14  denominator of this fraction shall be adjusted, if necessary,

15  by adding the numerator of said fraction to similarly

16  determined air miles in the state in which the other channel

17  termination point is located, so that the summation of the

18  apportionment factor for this state and the apportionment

19  factor for the other state is not greater than one, to ensure

20  that no more than 100 percent of the interstate interoffice

21  channel mileage charge can be taxed by this state and another

22  state.

23         4.  The tax imposed pursuant to this paragraph shall

24  not exceed $50,000 per calendar year on charges to any person

25  for interstate telecommunications services defined in s.

26  203.012(4) and (7)(b), if the majority of such services used

27  by such person are for communications originating outside of

28  this state and terminating in this state.  This exemption

29  shall only be granted to holders of a direct pay permit issued

30  pursuant to this subparagraph.  No refunds shall be given for

31  taxes paid prior to receiving a direct pay permit. Upon

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  1  application, the department may issue a direct pay permit to

  2  the purchaser of telecommunications services authorizing such

  3  purchaser to pay tax on such services directly to the

  4  department. Any vendor furnishing telecommunications services

  5  to the holder of a valid direct pay permit shall be relieved

  6  of the obligation to collect and remit the tax on such

  7  service. Tax payments and returns pursuant to a direct pay

  8  permit shall be monthly. For purposes of this subparagraph,

  9  the term "person" shall be limited to a single legal entity

10  and shall not be construed as meaning a group or combination

11  of affiliated entities or entities controlled by one person or

12  group of persons.

13         5.  If the sale of a television system program service,

14  as defined in this paragraph, also involves the sale of an

15  item exempt under s. 212.08(7)(j), the tax shall be applied to

16  the value of the taxable service when it is sold separately.

17  If the company does not offer this service separately, the

18  consideration paid shall be separately identified and stated

19  with respect to the taxable and exempt portions of the

20  transaction as a condition of the exemption, except that the

21  amount identified as taxable shall not be less than the cost

22  of the service.

23         Section 48.  Effective January 1, 2002, and applicable

24  to communications services reflected on bills dated on or

25  after such date, paragraph (b) of subsection (2) and paragraph

26  (c) of subsection (3) of section 212.054, Florida Statutes, as

27  amended by this act, are amended to read:

28         212.054  Discretionary sales surtax; limitations,

29  administration, and collection.--

30         (2)

31         (b)  However:

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  1         1.  The sales amount above $5,000 on any item of

  2  tangible personal property and on long-distance telephone

  3  service shall not be subject to the surtax. However, charges

  4  for prepaid calling arrangements, as defined in s.

  5  212.05(1)(e)1.a., shall be subject to the surtax. For purposes

  6  of administering the $5,000 limitation on an item of tangible

  7  personal property, if two or more taxable items of tangible

  8  personal property are sold to the same purchaser at the same

  9  time and, under generally accepted business practice or

10  industry standards or usage, are normally sold in bulk or are

11  items that, when assembled, comprise a working unit or part of

12  a working unit, such items must be considered a single item

13  for purposes of the $5,000 limitation when supported by a

14  charge ticket, sales slip, invoice, or other tangible evidence

15  of a single sale or rental. The limitation provided in this

16  subparagraph does not apply to the sale of any other service.

17         2.  In the case of utility, telecommunication, or

18  television system program services billed on or after the

19  effective date of any such surtax, the entire amount of the

20  charge for utility, telecommunication, or television system

21  program services shall be subject to the surtax. In the case

22  of utility, telecommunication, or television system program

23  services billed after the last day the surtax is in effect,

24  the entire amount of the charge on said items shall not be

25  subject to the surtax. "Utility service," as used in this

26  section, does not include any communications services as

27  defined in chapter 202.

28         3.  In the case of written contracts which are signed

29  prior to the effective date of any such surtax for the

30  construction of improvements to real property or for

31  remodeling of existing structures, the surtax shall be paid by

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  1  the contractor responsible for the performance of the

  2  contract.  However, the contractor may apply for one refund of

  3  any such surtax paid on materials necessary for the completion

  4  of the contract.  Any application for refund shall be made no

  5  later than 15 months following initial imposition of the

  6  surtax in that county.  The application for refund shall be in

  7  the manner prescribed by the department by rule.  A complete

  8  application shall include proof of the written contract and of

  9  payment of the surtax.  The application shall contain a sworn

10  statement, signed by the applicant or its representative,

11  attesting to the validity of the application.  The department

12  shall, within 30 days after approval of a complete

13  application, certify to the county information necessary for

14  issuance of a refund to the applicant. Counties are hereby

15  authorized to issue refunds for this purpose and shall set

16  aside from the proceeds of the surtax a sum sufficient to pay

17  any refund lawfully due.  Any person who fraudulently obtains

18  or attempts to obtain a refund pursuant to this subparagraph,

19  in addition to being liable for repayment of any refund

20  fraudulently obtained plus a mandatory penalty of 100 percent

21  of the refund, is guilty of a felony of the third degree,

22  punishable as provided in s. 775.082, s. 775.083, or s.

23  775.084.

24         4.  In the case of any vessel, railroad, or motor

25  vehicle common carrier entitled to partial exemption from tax

26  imposed under this chapter pursuant to s. 212.08(4), (8), or

27  (9), the basis for imposition of surtax shall be the same as

28  provided in s. 212.08 and the ratio shall be applied each

29  month to total purchases in this state of property qualified

30  for proration which is delivered or sold in the taxing county

31

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  1  to establish the portion used and consumed in intracounty

  2  movement and subject to surtax.

  3         (3)  For the purpose of this section, a transaction

  4  shall be deemed to have occurred in a county imposing the

  5  surtax when:

  6         (c)  The consumer of utility or television system

  7  program services is located in the county, or the

  8  telecommunication services are provided to a location within

  9  the county.

10         Section 49.  Effective January 1, 2001, section

11  337.401, Florida Statutes, is amended to read:

12         337.401  Use of right-of-way for utilities subject to

13  regulation; permit; fees.--

14         (1)  The department and local governmental entities,

15  referred to in ss. 337.401-337.404 as the "authority," that

16  have jurisdiction and control of public roads or publicly

17  owned rail corridors are authorized to prescribe and enforce

18  reasonable rules or regulations with reference to the placing

19  and maintaining along, across, or on any road or publicly

20  owned rail corridors under their respective jurisdictions any

21  electric transmission, telephone, or telegraph lines; pole

22  lines; poles; railways; ditches; sewers; water, heat, or gas

23  mains; pipelines; fences; gasoline tanks and pumps; or other

24  structures hereinafter referred to as the "utility."

25         (2)  The authority may grant to any person who is a

26  resident of this state, or to any corporation which is

27  organized under the laws of this state or licensed to do

28  business within this state, the use of a right-of-way for the

29  utility in accordance with such rules or regulations as the

30  authority may adopt.  No utility shall be installed, located,

31  or relocated unless authorized by a written permit issued by

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  1  the authority.  The permit shall require the permitholder to

  2  be responsible for any damage resulting from the issuance of

  3  such permit.  The authority may initiate injunctive

  4  proceedings as provided in s. 120.69 to enforce provisions of

  5  this subsection or any rule or order issued or entered into

  6  pursuant thereto.

  7         (3)(a)  Because federal and state law require the

  8  nondiscriminatory treatment of providers of telecommunications

  9  services and because of the desire to promote competition

10  among providers of telecommunications services, it is the

11  intent of the Legislature that municipalities and counties

12  treat telecommunications companies in a nondiscriminatory and

13  competitively neutral manner when imposing rules or

14  regulations governing the placement or maintenance of

15  telecommunications facilities in the public roads or

16  rights-of-way. Rules or regulations imposed by a municipality

17  or county relating to telecommunications companies placing or

18  maintaining telecommunications facilities in its roads or

19  rights-of-way must be generally applicable to all

20  telecommunications companies and, notwithstanding any other

21  law, may not require a telecommunications company to apply for

22  or enter into an individual license, franchise, or other

23  agreement with the municipality or county as a condition of

24  placing or maintaining telecommunications facilities in its

25  roads or rights-of-way. In addition to other reasonable rules

26  or regulations that a municipality or county may adopt

27  relating to the placement or maintenance of telecommunications

28  facilities in its roads or rights-of-way under this

29  subsection, a municipality or county may require a

30  telecommunications company that places or seeks to place

31  facilities in its roads or rights-of-way to register with the

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  1  municipality or county and to provide the name of the

  2  registrant; the name, address, and telephone number of a

  3  contact person for the registrant; the number of the

  4  registrant's current certificate of authorization issued by

  5  the Florida Public Service Commission or the Federal

  6  Communications Commission; and proof of insurance or

  7  self-insuring status adequate to defend and cover claims.

  8         (b)  Each municipality and county retains the authority

  9  to regulate and manage municipal and county roads or

10  rights-of-way in exercising its police power. Any rules or

11  regulations adopted by a municipality or county which govern

12  the occupation of its roads or rights-of-way by

13  telecommunications companies must be related to the placement

14  or maintenance of facilities in such roads or rights-of-way,

15  must be reasonable and nondiscriminatory, and may include only

16  those matters necessary to manage the roads or rights-of-way

17  of the municipality or county.

18         (c)1.  It is the intention of the state to treat all

19  providers of communications services that use or occupy

20  municipal or charter county roads or rights-of-way for the

21  provision of communications services in a nondiscriminatory

22  and competitively neutral manner with respect to the payment

23  of permit fees. Certain providers of communications services

24  have been granted by general law the authority to offset

25  permit fees against franchise or other fees while other

26  providers of communications services have not been granted

27  this authority. In order to treat all providers of

28  communications services in a nondiscriminatory and

29  competitively neutral manner with respect to the payment of

30  permit fees, each municipality and charter county shall make

31  an election under either sub-subparagraph a. or

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  1  sub-subparagraph b. and must inform the Department of Revenue

  2  of the election by certified mail by October 1, 2001. Such

  3  election take effect January 1, 2002.

  4         a.(I)  The municipality or charter county may require

  5  and collect permit fees from any providers of communications

  6  services that use or occupy municipal or county roads or

  7  rights-of-way. All fees permitted under this sub-subparagraph

  8  must be reasonable and commensurate with the direct and actual

  9  cost of the regulatory activity, including issuing and

10  processing permits, plan reviews, physical inspection, and

11  direct administrative costs; must be demonstrable; and must be

12  equitable among users of the roads or rights-of-way. A fee

13  permitted under this sub-subparagraph may not: be offset

14  against the tax imposed under chapter 202; include the costs

15  of roads or rights-of-way acquisition or roads or

16  rights-of-way rental; include any general administrative,

17  management, or maintenance costs of the roads or

18  rights-of-way; or be based on a percentage of the value or

19  costs associated with the work to be performed on the roads or

20  rights-of-way. In an action to recover amounts due for a fee

21  not permitted under this sub-subparagraph, the prevailing

22  party may recover court costs and attorney's fees at trial and

23  on appeal. In addition to the limitations set forth in this

24  section, a fee levied by a municipality or charter county

25  under this sub-subparagraph may not exceed $100. However,

26  permit fees may not be imposed with respect to permits that

27  may be required for service drop lines not required to be

28  noticed under s. 556.108(5)(b) or for any activity that does

29  not require the physical disturbance of the roads or

30  rights-of-way or does not impair access to or full use of the

31  roads or rights-of-way.

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  1         (II)  To ensure competitive neutrality among providers

  2  of communications services, for any municipality or charter

  3  county that elects to exercise its authority to require and

  4  collect permit fees under this sub-subparagraph, the rate of

  5  the local communications services tax imposed by such

  6  jurisdiction, as computed under s. 202.20(1)(a) and (2), shall

  7  automatically be reduced by 0.12 percent.

  8         b.  Alternatively, the municipality or charter county

  9  may elect not to require and collect permit fees from any

10  provider of communications services that uses or occupies

11  municipal or charter county roads or rights-of-way for the

12  provision of communications services; however, each

13  municipality or charter county that elects to operate under

14  this sub-subparagraph retains all authority to establish rules

15  and regulations for providers of communications services to

16  use or occupy roads or rights-of-way as provided in this

17  section. If a municipality or charter county elects to operate

18  under this sub-subparagraph, the total rate for the local

19  communications services tax as computed under s. 202.20 for

20  that municipality or charter county may be increased by

21  ordinance to an amount not to exceed 0.12 percent.

22         c.  A municipality or charter county that does not make

23  an election as provided for in this subparagraph shall be

24  presumed to have elected to operate under the provisions of

25  sub-subparagraph b.

26         2.  Each noncharter county shall make an election under

27  either sub-subparagraph a. or sub-subparagraph b. and shall

28  inform the Department of Revenue of the election by certified

29  mail by October 1, 2001. Such election shall take effect

30  January 1, 2002.

31

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  1         a.  The noncharter county may elect to require and

  2  collect permit fees from any providers of communications

  3  services that use or occupy noncharter county roads or

  4  rights-of-way. All fees permitted under this sub-subparagraph

  5  must be reasonable and commensurate with the direct and actual

  6  cost of the regulatory activity, including issuing and

  7  processing permits, plan reviews, physical inspection, and

  8  direct administrative costs; must be demonstrable; and must be

  9  equitable among users of the roads or rights-of-way. A fee

10  permitted under this sub-subparagraph may not: be offset

11  against the tax imposed under chapter 202; include the costs

12  of roads or rights-of-way acquisition or roads or

13  rights-of-way rental; include any general administrative,

14  management, or maintenance costs of the roads or

15  rights-of-way; or be based on a percentage of the value or

16  costs associated with the work to be performed on the roads or

17  rights-of-way. In an action to recover amounts due for a fee

18  not permitted under this sub-subparagraph, the prevailing

19  party may recover court costs and attorney's fees at trial and

20  on appeal. In addition to the limitations set forth in this

21  section, a fee levied by a noncharter county under this

22  sub-subparagraph may not exceed $100. However, permit fees may

23  not be imposed with respect to permits that may be required

24  for service drop lines not required to be noticed under s.

25  556.108(5)(b) or for any activity that does not require the

26  physical disturbance of the roads or rights-of-way or does not

27  impair access to or full use of the roads or rights-of-way.

28         b.  Alternatively, the noncharter county may elect not

29  to require and collect permit fees from any provider of

30  communications services that uses or occupies noncharter

31  county roads or rights-of-way for the provision of

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  1  communications services; however, each noncharter county that

  2  elects to operate under this sub-subparagraph shall retain all

  3  authority to establish rules and regulations for providers of

  4  communications services to use or occupy roads or

  5  rights-of-way as provided in this section. If a noncharter

  6  county elects to operate under this sub-subparagraph, the

  7  total rate for the local communications services tax as

  8  computed under s. 202.20 for that noncharter county may be

  9  increased by ordinance to an amount not to exceed 0.24

10  percent, to replace the revenue the noncharter county would

11  otherwise have received from permit fees for providers of

12  communications services.

13         c.  A noncharter county that does not make an election

14  as provided for in this subparagraph shall be presumed to have

15  elected to operate under the provisions of sub-subparagraph b.

16         3.  Except as provided in this paragraph,

17  municipalities and counties retain all existing authority to

18  require and collect permit fees from users or occupants of

19  municipal or county roads or rights-of-way and to set

20  appropriate permit fee amounts.

21         (d)  After January 1, 2001, in addition to any other

22  notice requirements, a municipality must provide to the

23  Secretary of State, at least 10 days prior to consideration on

24  first reading, notice of a proposed ordinance governing a

25  telecommunications company placing or maintaining

26  telecommunications facilities in its roads or rights-of-way.

27  After January 1, 2001, in addition to any other notice

28  requirements, a county must provide to the Secretary of State,

29  at least 15 days prior to consideration at a public hearing,

30  notice of a proposed ordinance governing a telecommunications

31  company placing or maintaining telecommunications facilities

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  1  in its roads or rights-of-way. The notice required by this

  2  paragraph must be published by the Secretary of State on a

  3  designated Internet website. The failure of a municipality or

  4  county to provide such notice does not render the ordinance

  5  invalid.

  6         (e)  If any municipality requires any

  7  telecommunications company to pay a fee or other consideration

  8  as a condition for granting permission to occupy municipal

  9  streets and rights-of-way for poles, wires, and other

10  fixtures, such fee or consideration may not exceed 1 percent

11  of the gross receipts on recurring local service revenues for

12  services provided within the corporate limits of the

13  municipality by such telecommunications company. Included

14  within such 1-percent maximum fee or consideration are all

15  taxes, licenses, fees, in-kind contributions accepted pursuant

16  to paragraph (g) subsection (5), and other impositions except

17  ad valorem taxes and amounts for assessments for special

18  benefits, such as sidewalks, street pavings, and similar

19  improvements, and occupational license taxes levied or imposed

20  by a municipality upon the telecommunications company.  This

21  paragraph subsection shall not impair any franchise in

22  existence on July 1, 1985.

23         (f)(4)  A municipality may require by ordinance enter

24  into an agreement with any person providing telecommunication

25  services defined in s. 203.012(7) as a condition for granting

26  permission to occupy or use any city street, alley, viaduct,

27  elevated roadway, bridge, or other public way to pay. The

28  agreement shall permit the telecommunication service provider

29  to construct, operate, maintain, repair, rebuild, or replace a

30  telecommunications route within a municipal right-of-way.  The

31  agreement shall provide for a fee or other consideration

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  1  payable annually based on actual linear feet of any cable,

  2  fiber optic, or other pathway that makes physical use of the

  3  municipal right-of-way.  In no event shall the fee or other

  4  consideration imposed pursuant to this paragraph subsection be

  5  less than $500 per linear mile of any cable, fiber optic, or

  6  other pathway that makes physical use of the municipal

  7  right-of-way.  Any fee or other consideration imposed by this

  8  paragraph subsection in excess of $500 shall be applied in a

  9  nondiscriminatory manner and shall not exceed the sum of:

10         1.(a)  Costs directly related to the inconvenience or

11  impairment solely caused by the disturbance of the municipal

12  right-of-way; and

13         2.(b)  The reasonable cost of the regulatory activity

14  of the municipality; and.

15         3.(c)  The proportionate share of cost of land for such

16  street, alley, or other public way attributable to utilization

17  of the right-of-way by a telecommunication service provider.

18

19  Furthermore, no telecommunication service provider shall be

20  required to pay more than one such fee or other consideration

21  annually for the construction, maintenance, operation, repair,

22  rebuilding, or replacement of a parallel telecommunications

23  route owned by it, or by a subsidiary under its direct

24  control, which makes use of the right-of-way of any

25  municipality enacting an ordinance pursuant to this paragraph

26  subsection.  The fee or other consideration imposed pursuant

27  to this paragraph subsection shall not apply in any manner to

28  any telecommunication service provider who provides

29  telecommunication services as defined in s. 203.012(3) for any

30  services provided by such service provider.  Any agreement

31  entered into pursuant to the authority of this paragraph

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  1  subsection prior to June 3, 1988, and the fees or fee schedule

  2  in effect on that date shall remain in full force and effect

  3  until such agreement expires. Any ordinance enacted pursuant

  4  to this paragraph subsection prior to June 3, 1988, and the

  5  fees or fee schedule in effect on that date shall remain in

  6  full force and effect unless the ordinance is repealed by the

  7  municipality. Notwithstanding the language contained herein a

  8  municipality may reenact any ordinance which has an automatic

  9  expiration date provided the ordinance does not increase the

10  fees in effect in said ordinance in violation of this section.

11         (g)(5)  Except as expressly allowed or authorized by

12  general law and except for the rights-of-way permit fees

13  subject to paragraph (e) subsection (3), a municipality may

14  not levy on a telecommunications company a tax, fee, or other

15  charge for operating as a telecommunications company within

16  the jurisdiction of the municipality or which is in any way

17  related to using its roads or rights-of-way.  A municipality

18  may not allow a telecommunications company to pay a fee or

19  provide compensation in excess of the limits prescribed in

20  this section.  A municipality may not require or solicit

21  in-kind compensation in lieu of any fees imposed pursuant to

22  this section.  Nothing in this paragraph subsection shall

23  impair any ordinance or agreement in effect on May 22, 1998,

24  the effective date of this act which provides for or allows

25  in-kind compensation by a telecommunications company.

26         (h)(6)  A local governmental entity may not use its

27  authority over the placement of facilities in its roads and

28  rights-of-way as a basis for asserting or exercising

29  regulatory control over a telecommunications company regarding

30  matters within the exclusive jurisdiction of the Florida

31  Public Service Commission or the Federal Communications

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  1  Commission, including, but not limited to, the operations,

  2  systems, qualifications, services, service quality, service

  3  territory, and prices of a telecommunications company.

  4         (i)(7)  A telecommunications company that has obtained

  5  permission to occupy the roads and rights-of-way of an

  6  incorporated municipality pursuant to s. 362.01 city or town

  7  or that is otherwise lawfully occupying the roads or

  8  rights-of-way of a municipality on the effective date of this

  9  act shall not be required to obtain additional consent to

10  continue such lawful occupation of those roads or

11  rights-of-way; however, nothing in this paragraph subsection

12  shall be interpreted to limit the power of a municipality to

13  impose a fee or adopt or enforce reasonable rules or

14  regulations as provided in this section.

15         (j)(8)  Except as expressly provided in this section,

16  this section does not modify the authority of local

17  governmental entities to levy the tax authorized in s. 166.231

18  or the duties of telecommunications companies under ss.

19  337.402-337.404.  This section does not apply to building

20  permits, pole attachments, or private roads, private

21  easements, and private rights-of-way. Except as expressly

22  provided in this section, this section does not limit or

23  expand whatever powers counties may have relating to roads and

24  rights-of-way. Nothing in this section shall limit or expand

25  whatever authority a local government may have to impose any

26  fee pursuant to 47 U.S.C. ss. 542 and 573.

27         (k)(9)  As used in this section, "telecommunications

28  company" has the same meaning as defined in s. 364.02.

29         (4)(10)  This section, except subsections (1) and, (2),

30  and paragraph (3)(h) (6), does not apply to the provision of

31

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  1  pay telephone service on public or municipal roads or

  2  rights-of-way.

  3         Section 50.  Effective January 1, 2002, section

  4  337.401, Florida Statutes, as amended by this act, is amended

  5  to read:

  6         337.401  Use of right-of-way for utilities subject to

  7  regulation; permit; fees.--

  8         (1)  The department and local governmental entities,

  9  referred to in ss. 337.401-337.404 as the "authority," that

10  have jurisdiction and control of public roads or publicly

11  owned rail corridors are authorized to prescribe and enforce

12  reasonable rules or regulations with reference to the placing

13  and maintaining along, across, or on any road or publicly

14  owned rail corridors under their respective jurisdictions any

15  electric transmission, telephone, or telegraph, or other

16  communications services lines; pole lines; poles; railways;

17  ditches; sewers; water, heat, or gas mains; pipelines; fences;

18  gasoline tanks and pumps; or other structures hereinafter

19  referred to as the "utility."

20         (2)  The authority may grant to any person who is a

21  resident of this state, or to any corporation which is

22  organized under the laws of this state or licensed to do

23  business within this state, the use of a right-of-way for the

24  utility in accordance with such rules or regulations as the

25  authority may adopt.  No utility shall be installed, located,

26  or relocated unless authorized by a written permit issued by

27  the authority.  The permit shall require the permitholder to

28  be responsible for any damage resulting from the issuance of

29  such permit.  The authority may initiate injunctive

30  proceedings as provided in s. 120.69 to enforce provisions of

31

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  1  this subsection or any rule or order issued or entered into

  2  pursuant thereto.

  3         (3)(a)  Because of the unique circumstances applicable

  4  to providers of communications services, including, but not

  5  limited to, the circumstances described in paragraph (e) and

  6  the fact that federal and state law require the

  7  nondiscriminatory treatment of providers of telecommunications

  8  services, and because of the desire to promote competition

  9  among providers of communications telecommunications services,

10  it is the intent of the Legislature that municipalities and

11  counties treat providers of communications services

12  telecommunications companies in a nondiscriminatory and

13  competitively neutral manner when imposing rules or

14  regulations governing the placement or maintenance of

15  communications telecommunications facilities in the public

16  roads or rights-of-way. Rules or regulations imposed by a

17  municipality or county relating to providers of communications

18  services telecommunications companies placing or maintaining

19  communications telecommunications facilities in its roads or

20  rights-of-way must be generally applicable to all providers of

21  communications services telecommunications companies and,

22  notwithstanding any other law, may not require a provider of

23  communications services, except as otherwise provided in

24  paragraph (f), telecommunications company to apply for or

25  enter into an individual license, franchise, or other

26  agreement with the municipality or county as a condition of

27  placing or maintaining communications telecommunications

28  facilities in its roads or rights-of-way. In addition to other

29  reasonable rules that a municipality or county may adopt

30  relating to the placement or maintenance of communications

31  telecommunications facilities in its roads or rights-of-way

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  1  under this subsection, a municipality or county may require a

  2  provider of communications services telecommunications company

  3  that places or seeks to place facilities in its roads or

  4  rights-of-way to register with the municipality or county and

  5  to provide the name of the registrant; the name, address, and

  6  telephone number of a contact person for the registrant; the

  7  number of the registrant's current certificate of

  8  authorization issued by the Florida Public Service Commission

  9  or the Federal Communications Commission; and proof of

10  insurance or self-insuring status adequate to defend and cover

11  claims.

12         (b)  Each municipality and county retains the authority

13  to regulate and manage municipal and county roads or

14  rights-of-way in exercising its police power. Any rules or

15  regulations adopted by a municipality or county which govern

16  the occupation of its roads or rights-of-way by providers of

17  communications services telecommunications companies must be

18  related to the placement or maintenance of facilities in such

19  roads or rights-of-way, must be reasonable and

20  nondiscriminatory, and may include only those matters

21  necessary to manage the roads or rights-of-way of the

22  municipality or county.

23         (c)1.  It is the intention of the state to treat all

24  providers of communications services that use or occupy

25  municipal or charter county roads or rights-of-way for the

26  provision of communications services in a nondiscriminatory

27  and competitively neutral manner with respect to the payment

28  of permit fees. Certain providers of communications services

29  have been granted by general law the authority to offset

30  permit fees against franchise or other fees while other

31  providers of communications services have not been granted

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  1  this authority. In order to treat all providers of

  2  communications services in a nondiscriminatory and

  3  competitively neutral manner with respect to the payment of

  4  permit fees, each municipality and charter county shall make

  5  an election under either sub-subparagraph a. or

  6  sub-subparagraph b. and must inform the Department of Revenue

  7  of the election by certified mail by October 1, 2001. Such

  8  election shall take effect January 1, 2002.

  9         a.(I)  The municipality or charter county may require

10  and collect permit fees from any providers of communications

11  services that use or occupy municipal or county roads or

12  rights-of-way. All fees permitted under this sub-subparagraph

13  must be reasonable and commensurate with the direct and actual

14  cost of the regulatory activity, including issuing and

15  processing permits, plan reviews, physical inspection, and

16  direct administrative costs; must be demonstrable; and must be

17  equitable among users of the roads or rights-of-way. A fee

18  permitted under this sub-subparagraph may not: be offset

19  against the tax imposed under chapter 202; include the costs

20  of roads or rights-of-way acquisition or roads or

21  rights-of-way rental; include any general administrative,

22  management, or maintenance costs of the roads or

23  rights-of-way; or be based on a percentage of the value or

24  costs associated with the work to be performed on the roads or

25  rights-of-way. In an action to recover amounts due for a fee

26  not permitted under this sub-subparagraph, the prevailing

27  party may recover court costs and attorney's fees at trial and

28  on appeal. In addition to the limitations set forth in this

29  section, a fee levied by a municipality or charter county

30  under this sub-subparagraph may not exceed $100. However,

31  permit fees may not be imposed with respect to permits that

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  1  may be required for service drop lines not required to be

  2  noticed under s. 556.108(5)(b) or for any activity that does

  3  not require the physical disturbance of the roads or

  4  rights-of-way or does not impair access to or full use of the

  5  roads or rights-of-way.

  6         (II)  To ensure competitive neutrality among providers

  7  of communications services, for any municipality or charter

  8  county that elects to exercise its authority to require and

  9  collect permit fees under this sub-subparagraph, the rate of

10  the local communications services tax imposed by such

11  jurisdiction, as computed under s. 202.20(1)(a) and (2), shall

12  automatically be reduced by 0.12 percent.

13         b.  Alternatively, the municipality or charter county

14  may elect not to require and collect permit fees from any

15  provider of communications services that uses or occupies

16  municipal or charter county roads or rights-of-way for the

17  provision of communications services; however, each

18  municipality or charter county that elects to operate under

19  this sub-subparagraph retains all authority to establish rules

20  and regulations for providers of communications services to

21  use or occupy roads or rights-of-way as provided in this

22  section. If a municipality or charter county elects to operate

23  under this sub-subparagraph, the total rate for the local

24  communications services tax as computed under s. 202.20 for

25  that municipality or charter county may be increased by

26  ordinance to an amount not to exceed 0.12 percent.

27         c.  A municipality or charter county that does not make

28  an election as provided for in this subparagraph shall be

29  presumed to have elected to operate under the provisions of

30  sub-subparagraph b.

31

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  1         2.  Each noncharter county shall make an election under

  2  either sub-subparagraph a. or sub-subparagraph b. and shall

  3  inform the Department of Revenue of the election by certified

  4  mail by October 1, 2001. Such election shall take effect

  5  January 1, 2002.

  6         a.  The noncharter county may elect to require and

  7  collect permit fees from any providers of communications

  8  services that use or occupy noncharter county roads or

  9  rights-of-way. All fees permitted under this sub-subparagraph

10  must be reasonable and commensurate with the direct and actual

11  cost of the regulatory activity, including issuing and

12  processing permits, plan reviews, physical inspection, and

13  direct administrative costs; must be demonstrable; and must be

14  equitable among users of the roads or rights-of-way. A fee

15  permitted under this sub-subparagraph may not: be offset

16  against the tax imposed under chapter 202; include the costs

17  of roads or rights-of-way acquisition or roads or

18  rights-of-way rental; include any general administrative,

19  management, or maintenance costs of the roads or

20  rights-of-way; or be based on a percentage of the value or

21  costs associated with the work to be performed on the roads or

22  rights-of-way. In an action to recover amounts due for a fee

23  not permitted under this sub-subparagraph, the prevailing

24  party may recover court costs and attorney's fees at trial and

25  on appeal. In addition to the limitations set forth in this

26  section, a fee levied by a noncharter county under this

27  sub-subparagraph may not exceed $100. However, permit fees may

28  not be imposed with respect to permits that may be required

29  for service drop lines not required to be noticed under s.

30  556.108(5)(b) or for any activity that does not require the

31

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  1  physical disturbance of the roads or rights-of-way or does not

  2  impair access to or full use of the roads or rights-of-way.

  3         b.  Alternatively, the noncharter county may elect not

  4  to require and collect permit fees from any provider of

  5  communications services that uses or occupies noncharter

  6  county roads or rights-of-way for the provision of

  7  communications services; however, each noncharter county that

  8  elects to operate under this sub-subparagraph shall retain all

  9  authority to establish rules and regulations for providers of

10  communications services to use or occupy roads or

11  rights-of-way as provided in this section. If a noncharter

12  county elects to operate under this sub-subparagraph, the

13  total rate for the local communications services tax as

14  computed under s. 202.20 for that noncharter county may be

15  increased by ordinance to an amount not to exceed 0.24

16  percent, to replace the revenue the noncharter county would

17  otherwise have received from permit fees for providers of

18  communications services.

19         c.  A noncharter county that does not make an election

20  as provided for in this subparagraph shall be presumed to have

21  elected to operate under the provisions of sub-subparagraph b.

22         3.  Except as provided in this paragraph,

23  municipalities and counties retain all existing authority to

24  require and collect permit fees from users or occupants of

25  municipal or county roads or rights-of-way and to set

26  appropriate permit fee amounts.

27         (d)  After January 1, 2001, in addition to any other

28  notice requirements, a municipality must provide to the

29  Secretary of State, at least 10 days prior to consideration on

30  first reading, notice of a proposed ordinance governing a

31  provider of communications services telecommunications company

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  1  placing or maintaining communications telecommunications

  2  facilities in its roads or rights-of-way. After January 1,

  3  2001, in addition to any other notice requirements, a county

  4  must provide to the Secretary of State, at least 15 days prior

  5  to consideration at a public hearing, notice of a proposed

  6  ordinance governing a provider of communications services

  7  telecommunications company placing or maintaining

  8  communications telecommunications facilities in its roads or

  9  rights-of-way. The notice required by this paragraph must be

10  published by the Secretary of State on a designated Internet

11  website. The failure of a municipality or county to provide

12  such notice does not render the ordinance invalid.

13         (e)  The authority of municipalities and counties to

14  require franchise fees from providers of communications

15  services, with respect to the provision of communications

16  services, is specifically preempted by the state, except as

17  otherwise provided in paragraph (f), because of unique

18  circumstances applicable to providers of communications

19  services when compared to other utilities occupying municipal

20  or county roads or rights-of-way. Providers of communications

21  services may provide similar services in a manner that

22  requires the placement of facilities in municipal or county

23  roads or rights-of-way or in a manner that does not require

24  the placement of facilities in such roads or rights-of-way.

25  Although similar communications services may be provided by

26  different means, the state desires to treat providers of

27  communications services in a nondiscriminatory manner and to

28  have the taxes, franchise fees, and other fees paid by

29  providers of communications services be competitively neutral.

30  Municipalities and counties retain all existing authority, if

31  any, to collect franchise fees from users or occupants of

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  1  municipal or county roads or rights-of-way other than

  2  providers of communications services, and the provisions of

  3  this subsection shall have no effect upon this authority. The

  4  provisions of this subsection do not restrict the authority,

  5  if any, of municipalities or counties or other governmental

  6  entities to receive reasonable rental fees based on fair

  7  market value for the use of public lands and buildings on

  8  property outside the public roads or rights-of-way for the

  9  placement of communications antennas and towers.

10         (f)  A municipality or county may request and negotiate

11  for in-kind requirements and contributions for, or in support

12  of, the use or construction of public, educational, or

13  governmental access facilities authorized under federal law

14  from providers of cable service, and nothing in this section

15  shall impair any ordinance or agreement in effect on July 1,

16  2000, which provides for or allows for such requirements or

17  contributions, including the ability of providers of cable

18  service to recover any such expenses pursuant to federal law.

19  This subsection shall be reviewed by the Legislature during

20  the 2001 legislative session in conjunction with the study

21  required by this act.

22         (g)  Each municipality and county retains authority to

23  negotiate all terms and conditions of a cable service

24  franchise allowed by federal and state law except those terms

25  and conditions related to franchise fees and the definition of

26  gross revenues or other definitions or methodologies related

27  to the payment or assessment of franchise fees on providers of

28  cable services.

29         (e)  If any municipality requires any

30  telecommunications company to pay a fee or other consideration

31  as a condition for granting permission to occupy municipal

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  1  streets and rights-of-way for poles, wires, and other

  2  fixtures, such fee or consideration may not exceed 1 percent

  3  of the gross receipts on recurring local service revenues for

  4  services provided within the corporate limits of the

  5  municipality by such telecommunications company. Included

  6  within such 1-percent maximum fee or consideration are all

  7  taxes, licenses, fees, in-kind contributions accepted pursuant

  8  to paragraph (g), and other impositions except ad valorem

  9  taxes and amounts for assessments for special benefits, such

10  as sidewalks, street pavings, and similar improvements, and

11  occupational license taxes levied or imposed by a municipality

12  upon the telecommunications company.  This paragraph shall not

13  impair any franchise in existence on July 1, 1985.

14         (f)  A municipality may require any person providing

15  telecommunication services defined in s. 203.012(7) as a

16  condition for granting permission to occupy or use any city

17  street, alley, viaduct, elevated roadway, bridge, or other

18  public way to pay a fee or other consideration payable

19  annually based on actual linear feet of any cable, fiber

20  optic, or other pathway that makes physical use of the

21  municipal right-of-way.  In no event shall the fee or other

22  consideration imposed pursuant to this paragraph be less than

23  $500 per linear mile of any cable, fiber optic, or other

24  pathway that makes physical use of the municipal right-of-way.

25  Any fee or other consideration imposed by this paragraph in

26  excess of $500 shall be applied in a nondiscriminatory manner

27  and shall not exceed the sum of:

28         1.  Costs directly related to the inconvenience or

29  impairment solely caused by the disturbance of the municipal

30  right-of-way;

31

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  1         2.  The reasonable cost of the regulatory activity of

  2  the municipality; and

  3         3.  The proportionate share of cost of land for such

  4  street, alley, or other public way attributable to utilization

  5  of the right-of-way by a telecommunication service provider.

  6

  7  Furthermore, no telecommunication service provider shall be

  8  required to pay more than one such fee or other consideration

  9  annually for the construction, maintenance, operation, repair,

10  rebuilding, or replacement of a parallel telecommunications

11  route owned by it, or by a subsidiary under its direct

12  control, which makes use of the right-of-way of any

13  municipality enacting an ordinance pursuant to this paragraph.

14  The fee or other consideration imposed pursuant to this

15  paragraph shall not apply in any manner to any

16  telecommunication service provider who provides

17  telecommunication services as defined in s. 203.012(3) for any

18  services provided by such service provider.  Any agreement

19  entered into pursuant to the authority of this paragraph prior

20  to June 3, 1988, and the fees or fee schedule in effect on

21  that date shall remain in full force and effect until such

22  agreement expires. Any ordinance enacted pursuant to this

23  paragraph prior to June 3, 1988, and the fees or fee schedule

24  in effect on that date shall remain in full force and effect

25  unless the ordinance is repealed by the municipality.

26  Notwithstanding the language contained herein a municipality

27  may reenact any ordinance which has an automatic expiration

28  date provided the ordinance does not increase the fees in

29  effect in said ordinance in violation of this section.

30         (h)(g)  Except as expressly allowed or authorized by

31  general law and except for the rights-of-way permit fees

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  1  subject to paragraph (c) (e), a municipality or county may not

  2  levy on a provider of communications services

  3  telecommunications company a tax, fee, or other charge or

  4  imposition for operating as a provider of communications

  5  services telecommunications company within the jurisdiction of

  6  the municipality or county which is in any way related to

  7  using its roads or rights-of-way. A municipality may not allow

  8  a telecommunications company to pay a fee or provide

  9  compensation in excess of the limits prescribed in this

10  section. A municipality or county may not require or solicit

11  in-kind compensation except as otherwise provided in paragraph

12  (f) in lieu of any fees imposed pursuant to this section.

13  Nothing in this paragraph shall impair any ordinance or

14  agreement in effect on May 22, 1998, or any voluntary

15  agreement entered into subsequent to that date, which provides

16  for or allows in-kind compensation by a telecommunications

17  company.

18         (i)(h)  A municipality or county local governmental

19  entity may not use its authority over the placement of

20  facilities in its roads and rights-of-way as a basis for

21  asserting or exercising regulatory control over a provider of

22  communications services telecommunications company regarding

23  matters within the exclusive jurisdiction of the Florida

24  Public Service Commission or the Federal Communications

25  Commission, including, but not limited to, the operations,

26  systems, qualifications, services, service quality, service

27  territory, and prices of a provider of communications services

28  telecommunications company.

29         (j)(i)  A provider of communications services

30  telecommunications company that has obtained permission to

31  occupy the roads or and rights-of-way of an incorporated

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  1  municipality pursuant to s. 362.01 or that is otherwise

  2  lawfully occupying the roads or rights-of-way of a

  3  municipality on the effective date of this act shall not be

  4  required to obtain consent to continue such lawful occupation

  5  of those roads or rights-of-way; however, nothing in this

  6  paragraph shall be interpreted to limit the power of a

  7  municipality to impose a fee or adopt or enforce reasonable

  8  rules or regulations as provided in this section.

  9         (k)(j)  Except as expressly provided in this section,

10  this section does not modify the authority of municipalities

11  and counties local governmental entities to levy the tax

12  authorized in chapter 202 s. 166.231 or the duties of

13  providers of communications services telecommunications

14  companies under ss. 337.402-337.404.  This section does not

15  apply to building permits, pole attachments, or private roads,

16  private easements, and private rights-of-way. Except as

17  expressly provided in this section, this section does not

18  limit or expand whatever powers counties may have relating to

19  roads and rights-of-way. Nothing in this section shall limit

20  or expand whatever authority a local government may have to

21  impose any fee pursuant to 47 U.S.C. ss. 542 and 573.

22         (4)(k)  As used in this section, "communications

23  services" and "cable services" have "telecommunications

24  company" has the same meanings ascribed in chapter 202 meaning

25  as defined in s. 364.02.

26         (5)(4)  This section, except subsections (1) and (2)

27  and paragraph (3)(i)(h), does not apply to the provision of

28  pay telephone service on public, or municipal, or county roads

29  or rights-of-way.

30         Section 51.  The Legislature finds that it may be

31  necessary to adopt a state policy regarding in-kind

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  1  requirements and contributions for, or in support of, the use

  2  or construction of public, educational, or governmental access

  3  facilities authorized under federal law currently imposed only

  4  on providers of cable service, especially in light of the

  5  in-kind requirements for providers of telecommunications

  6  services under section 337.401(5), Florida Statutes, 1999.

  7  Given the development of alternative choices in the delivery

  8  of multichannel video programming, including programming by

  9  providers of wireless, satellite, Internet, and other video

10  delivery systems, and the potential competitive inequities

11  which may be associated with such requirements and

12  contributions, the appropriate committees of the Legislature

13  shall study and evaluate, during the 2001 legislative session,

14  an appropriate state policy regarding these issues, including

15  the option of calculating the present and future value of such

16  requirements and contributions available to local governments

17  in excess of the limitations imposed on franchise fees under

18  47 U.S.C. s. 542(b) as a part of the computation of

19  replacement revenues under section 202.20, Florida Statutes,

20  in setting the local communications services tax rate.

21         Section 52.  Subsection (1) of section 212.031, Florida

22  Statutes, is amended to read:

23         212.031  Lease or rental of or license in real

24  property.--

25         (1)(a)  It is declared to be the legislative intent

26  that every person is exercising a taxable privilege who

27  engages in the business of renting, leasing, letting, or

28  granting a license for the use of any real property unless

29  such property is:

30         1.  Assessed as agricultural property under s. 193.461.

31         2.  Used exclusively as dwelling units.

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  1         3.  Property subject to tax on parking, docking, or

  2  storage spaces under s. 212.03(6).

  3         4.  Recreational property or the common elements of a

  4  condominium when subject to a lease between the developer or

  5  owner thereof and the condominium association in its own right

  6  or as agent for the owners of individual condominium units or

  7  the owners of individual condominium units. However, only the

  8  lease payments on such property shall be exempt from the tax

  9  imposed by this chapter, and any other use made by the owner

10  or the condominium association shall be fully taxable under

11  this chapter.

12         5.  A public or private street or right-of-way and

13  poles, conduits, fixtures, and similar improvements located on

14  such streets or rights-of-way, occupied or used by a utility

15  or franchised cable television company for utility or

16  communications or television purposes. For purposes of this

17  subparagraph, the term "utility" means any person providing

18  utility services as defined in s. 203.012. This exception also

19  applies to property, excluding buildings, wherever located, on

20  which the following are placed: towers, antennas, cables,

21  adjacent accessory structures, or adjacent accessory

22  equipment, not including switching equipment, used in the

23  provision of cellular, enhanced specialized mobile radio, or

24  personal communications services as defined in s. 202.11 are

25  placed. For purposes of this chapter, towers used in the

26  provision of mobile communications services, as defined in s.

27  202.11, are considered to be fixtures.

28         6.  A public street or road which is used for

29  transportation purposes.

30         7.  Property used at an airport exclusively for the

31  purpose of aircraft landing or aircraft taxiing or property

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  1  used by an airline for the purpose of loading or unloading

  2  passengers or property onto or from aircraft or for fueling

  3  aircraft.

  4         8.a.  Property used at a port authority, as defined in

  5  s. 315.02(2), exclusively for the purpose of oceangoing

  6  vessels or tugs docking, or such vessels mooring on property

  7  used by a port authority for the purpose of loading or

  8  unloading passengers or cargo onto or from such a vessel, or

  9  property used at a port authority for fueling such vessels, or

10  to the extent that the amount paid for the use of any property

11  at the port is based on the charge for the amount of tonnage

12  actually imported or exported through the port by a tenant.

13         b.  The amount charged for the use of any property at

14  the port in excess of the amount charged for tonnage actually

15  imported or exported shall remain subject to tax except as

16  provided in sub-subparagraph a.

17         9.  Property used as an integral part of the

18  performance of qualified production services.  As used in this

19  subparagraph, the term "qualified production services" means

20  any activity or service performed directly in connection with

21  the production of a qualified motion picture, as defined in s.

22  212.06(1)(b), and includes:

23         a.  Photography, sound and recording, casting, location

24  managing and scouting, shooting, creation of special and

25  optical effects, animation, adaptation (language, media,

26  electronic, or otherwise), technological modifications,

27  computer graphics, set and stage support (such as

28  electricians, lighting designers and operators, greensmen,

29  prop managers and assistants, and grips), wardrobe (design,

30  preparation, and management), hair and makeup (design,

31  production, and application), performing (such as acting,

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  1  dancing, and playing), designing and executing stunts,

  2  coaching, consulting, writing, scoring, composing,

  3  choreographing, script supervising, directing, producing,

  4  transmitting dailies, dubbing, mixing, editing, cutting,

  5  looping, printing, processing, duplicating, storing, and

  6  distributing;

  7         b.  The design, planning, engineering, construction,

  8  alteration, repair, and maintenance of real or personal

  9  property including stages, sets, props, models, paintings, and

10  facilities principally required for the performance of those

11  services listed in sub-subparagraph a.; and

12         c.  Property management services directly related to

13  property used in connection with the services described in

14  sub-subparagraphs a. and b.

15         10.  Leased, subleased, licensed, or rented to a person

16  providing food and drink concessionaire services within the

17  premises of a convention hall, exhibition hall, auditorium,

18  stadium, theater, arena, civic center, performing arts center,

19  recreational facility, or any business operated under a permit

20  issued pursuant to chapter 550.  A person providing retail

21  concessionaire services involving the sale of food and drink

22  or other tangible personal property within the premises of an

23  airport shall be subject to tax on the rental of real property

24  used for that purpose, but shall not be subject to the tax on

25  any license to use the property.  For purposes of this

26  subparagraph, the term "sale" shall not include the leasing of

27  tangible personal property.

28         11.  Property occupied pursuant to an instrument

29  calling for payments which the department has declared, in a

30  Technical Assistance Advisement issued on or before March 15,

31  1993, to be nontaxable pursuant to rule 12A-1.070(19)(c),

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  1  Florida Administrative Code; provided that this subparagraph

  2  shall only apply to property occupied by the same person

  3  before and after the execution of the subject instrument and

  4  only to those payments made pursuant to such instrument,

  5  exclusive of renewals and extensions thereof occurring after

  6  March 15, 1993.

  7         (b)  When a lease involves multiple use of real

  8  property wherein a part of the real property is subject to the

  9  tax herein, and a part of the property would be excluded from

10  the tax under subparagraph (a)1., subparagraph (a)2., or

11  subparagraph (a)3., or subparagraph (a)5., the department

12  shall determine, from the lease or license and such other

13  information as may be available, that portion of the total

14  rental charge which is exempt from the tax imposed by this

15  section. The portion of the premises leased or rented by a

16  for-profit entity providing a residential facility for the

17  aged will be exempt on the basis of a pro rata portion

18  calculated by combining the square footage of the areas used

19  for residential units by the aged and for the care of such

20  residents and dividing the resultant sum by the total square

21  footage of the rented premises. For purposes of this section,

22  the term "residential facility for the aged" means a facility

23  that is licensed or certified in whole or in part under

24  chapter 400 or chapter 651; or that provides residences to the

25  elderly and is financed by a mortgage or loan made or insured

26  by the United States Department of Housing and Urban

27  Development under s. 202, s. 202 with a s. 8 subsidy, s.

28  221(d)(3) or (4), s. 232, or s. 236 of the National Housing

29  Act; or other such similar facility that provides residences

30  primarily for the elderly.

31

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

  2  levied in an amount equal to 6 percent of and on the total

  3  rent or license fee charged for such real property by the

  4  person charging or collecting the rental or license fee. The

  5  total rent or license fee charged for such real property shall

  6  include payments for the granting of a privilege to use or

  7  occupy real property for any purpose and shall include base

  8  rent, percentage rents, or similar charges. Such charges shall

  9  be included in the total rent or license fee subject to tax

10  under this section whether or not they can be attributed to

11  the ability of the lessor's or licensor's property as used or

12  operated to attract customers. Payments for intrinsically

13  valuable personal property such as franchises, trademarks,

14  service marks, logos, or patents are not subject to tax under

15  this section.  In the case of a contractual arrangement that

16  provides for both payments taxable as total rent or license

17  fee and payments not subject to tax, the tax shall be based on

18  a reasonable allocation of such payments and shall not apply

19  to that portion which is for the nontaxable payments.

20         (d)  When the rental or license fee of any such real

21  property is paid by way of property, goods, wares,

22  merchandise, services, or other thing of value, the tax shall

23  be at the rate of 6 percent of the value of the property,

24  goods, wares, merchandise, services, or other thing of value.

25         Section 53.  The taxes imposed by sections 203.01,

26  202.12, and 202.19, Florida Statutes, on communications

27  services shall be applied in accordance with chapter 202,

28  Florida Statutes, as created by this act, to communications

29  services reflected on bills dated on or after January 1, 2002.

30         Section 54.  Effective upon this act becoming a law,

31  the sum of $189,000 is appropriated from the General Revenue

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  1  Fund to the Department of Revenue in fiscal year 2000-2001 to

  2  implement the provisions of this act.

  3         Section 55.  The sum of $1,327,195 is appropriated from

  4  the General Revenue Fund to the Department of Revenue and 22

  5  full-time equivalent positions are authorized to implement the

  6  provisions of this act.

  7         Section 56.  Except as otherwise provided in this act,

  8  this act shall take effect July 1, 2000.

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  1          STATEMENT OF SUBSTANTIAL CHANGES CONTAINED IN
                       COMMITTEE SUBSTITUTE FOR
  2                          CS for SB 1338

  3

  4  The Committee Substitute for CS/SB 1338:

  5  -     Clarifies various definitions;

  6  -     Provides for the calculation of the rate for direct
          broadcast satellite;
  7
    -     Clarifies billing, collection, and remittance provisions
  8        and describes reporting requirements to the Department
          of Revenue;
  9
     -    Provides that a local government that does not receive
10        the expected amount of revenue in the first year of the
          tax can enact an emergency ordinance to hold itself
11        harmless against the shortfall;

12  -     Clarifies the definition of "replaced revenue sources";

13  -     Provides for a conversion rate procedure;

14  -     Provides administrative procedures for certification of
          databases;
15
    -     Clarifies the Department of Revenue's rule-making
16        authority with respect to the communications services
          tax;
17
    -     Clarifies that the Department of Revenue can audit
18        either a dealer or a purchaser;

19  -     Explains the state's intent to treat all providers the
          same regarding the payment of permit fees;
20
    -     Clarifies that $100 is a cap and that permit fees must
21        relate to actual costs;

22  -     Provides that Internet access, electronic mail, and
          online services are not taxed;
23
    -     Clarifies that both state-level taxes are to be applied
24        toward the $100,000 threshold for the large user
          exemption;
25
    -     Reduces the allowable deduction for Department of
26        Revenue costs to administer the local taxes from 2
          percent to 1 percent;
27
    -     Adds provisions directing a study of in-kind
28        contributions by cable operators and their valuation in
          calculating replacement revenues for the local taxes;
29
    -     Provides that municipalities and counties retain the
30        authority to negotiate terms and conditions of cable
          franchise agreements except regarding franchise fees,
31        which are replaced with the new local taxes;

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  1  -     Prescribes the treatment of telephone franchise fees
          under older franchises in calculating local tax rates;
  2
    -     Specifies the rate adjustments that result from a local
  3        government's decision whether to charge permit fees;

  4  -     Clarifies that the replaced revenues used in calculating
          local rates do not include permit fees for cities that
  5        elect to charge permit fees separately; and

  6  -     Clarifies effective dates as they relate to local
          jurisdictions electing whether to continue collecting
  7        permit fees.

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