Senate Bill 1998c2

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    Florida Senate - 2000                    CS for CS for SB 1998

    By the Committees on Fiscal Resource; Governmental Oversight
    and Productivity; and Senator Horne




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  1                      A bill to be entitled

  2         An act relating to state revenue; amending s.

  3         215.5601, F.S.; defining the term

  4         "participating manufacturer"; revising

  5         legislative intent; specifying procedures by

  6         which a tobacco manufacturer may become a

  7         participating manufacturer; providing for

  8         signatories to a specified settlement agreement

  9         to be participating manufacturers; providing

10         for funds received from participating

11         manufacturers to be deposited into the Tobacco

12         Settlement Clearing Trust Fund; providing for a

13         portion of unappropriated funds to be deposited

14         into the Lawton Chiles Endowment Fund; amending

15         s. 210.02, F.S.; imposing a surtax on

16         cigarettes not manufactured by a participating

17         manufacturer, as defined by the act; providing

18         for calculating the amount of the surtax;

19         amending s. 210.20, F.S.; providing for the

20         deposit of proceeds of the surtax; creating s.

21         215.5603, F.S.; creating the Tobacco Settlement

22         Financing Corporation; defining terms;

23         providing membership, powers, duties, and

24         functions of the corporation; providing for the

25         purchase of insurance and for the issuance of

26         bonds; providing powers of the Department of

27         Banking and Finance with respect to the

28         corporation; providing for severability;

29         providing an effective date.

30

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

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  1         Section 1.  Section 215.5601, Florida Statutes, is

  2  amended to read:

  3         215.5601  Lawton Chiles Endowment Fund.--

  4         (1)  SHORT TITLE.--This section may be cited as the

  5  "Lawton Chiles Endowment Fund."

  6         (2)  DEFINITIONS.--As used in this section:

  7         (a)  "Board" means the State Board of Administration

  8  established by s. 16, Art. IX of the State Constitution of

  9  1885 and incorporated into s. 9(c), Art. XII of the State

10  Constitution of 1968.

11         (b)  "Endowment" means the Lawton Chiles Endowment

12  Fund.

13         (c)  "Earnings" means all income generated by

14  investments and the net change in the market value of assets.

15         (d)  "Participating manufacturer" means any

16  manufacturer of tobacco products which meets the requirements

17  of subsection (4).

18         (e)(d)  "State agency" or "state agencies" means the

19  Department of Health, the Department of Children and Family

20  Services, the Department of Elderly Affairs, or the Agency for

21  Health Care Administration, or any combination thereof, as the

22  context indicates.

23         (3)  LEGISLATIVE INTENT.--It is the intent of the

24  Legislature to:

25         (a)  Provide a perpetual source of funding for the

26  future of state children's health programs, child welfare

27  programs, community-based health and human services

28  initiatives, and biomedical research activities.

29         (b)  Ensure that enhancement revenues will be available

30  to finance these important initiatives.

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  1         (c)  Use funds received from the Tobacco Settlement

  2  Clearing Trust Fund moneys to ensure the financial security of

  3  vital health and human services programs.

  4         (d)  Encourage the development of community-based

  5  solutions to strengthen and improve the quality of life of

  6  Florida's most vulnerable citizens.

  7         (e)  Provide funds for cancer research and

  8  public-health research for diseases linked to tobacco use.

  9         (f)  Provide tobacco manufacturers the opportunity to

10  voluntarily participate in mitigating the impact of the use of

11  tobacco on the residents of this state.

12         (4)  PARTICIPATING MANUFACTURERS; QUALIFICATIONS.--

13         (a)1.  A tobacco manufacturer may become a

14  participating manufacturer by entering into an agreement with

15  the Attorney General which provides for the following:

16         a.  Elimination of the manufacturer's outdoor

17  advertising and transit advertisements at the earlier of the

18  expiration of applicable contracts or 4 months after the date

19  the final list of outdoor advertising signs is supplied to the

20  Attorney General. The manufacturer shall provide a final list

21  of all its outdoor advertising signs and transit

22  advertisements to the Attorney General within 45 days after

23  entering the agreement.

24         b.  Support of the state's efforts to mitigate the

25  impact of the use of tobacco through annual payments to the

26  state. On January 1 of each year, the Division of Alcoholic

27  Beverages and Tobacco of the Department of Business and

28  Professional Regulation shall calculate the payment amount,

29  which is due by January 31 of that year. The payment amount

30  shall be based on the number of cigarette packages delivered

31  to wholesale dealers for sale in this state by the

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  1  manufacturer from January 1 until December 31 of the prior

  2  year. The payment amount per package shall be calculated as

  3  the total annual payment due to the state pursuant to the

  4  settlement agreement in the case of The State of Florida et

  5  al., v. American Tobacco Company et al., divided by the total

  6  number of packages delivered to wholesale dealers for sale in

  7  this state by the four settling manufacturers during the

  8  previous 12 months, rounded to the nearest tenth of a cent.

  9         2.  Cigarettes produced by each manufacturer that fully

10  complies with the agreement entered into with the Attorney

11  General under subparagraph 1. and makes the annual payment by

12  January 31 are exempt from the surtax on cigarettes imposed

13  under s. 210.02(6) for the subsequent 12-month period.

14         (b)  All tobacco manufacturers that are signatories to

15  the settlement agreement entered on August 25, 1997, in the

16  case of The State of Florida et al., v. American Tobacco

17  Company et al., and the settlement agreement entered on March

18  15, 1996, in the case of State of West Virginia, State of

19  Florida, State of Mississippi, Commonwealth of Massachusetts,

20  and State of Louisiana v. Brooke Group Ltd. and Liggett Group,

21  Inc., are participating manufacturers. Cigarettes produced by

22  each such manufacturer that fully complies with the applicable

23  settlement agreement and makes the annual payment required

24  under the agreement by December 31 are exempt from the surtax

25  on cigarettes imposed under s. 210.02(6) for the subsequent

26  12-month period.

27         (c)  Funds received from participating manufacturers

28  shall be deposited into the Department of Banking and Finance

29  Tobacco Settlement Clearing Trust Fund.

30         (5)(4)  LAWTON CHILES ENDOWMENT FUND; CREATION;

31  PURPOSES AND USES.--

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  1         (a)  There is created the Lawton Chiles Endowment Fund,

  2  to be administered by the State Board of Administration. The

  3  endowment shall serve as a clearing trust fund not subject to

  4  termination pursuant to s. 19(f), Art. III of the State

  5  Constitution and shall be funded by settlement moneys received

  6  from the Tobacco Settlement Clearing Trust Fund industry. The

  7  endowment fund shall be exempt from the service charges

  8  imposed by s. 215.20.

  9         (b)  Funds from the endowment shall be distributed by

10  the board to trust funds of the state agencies in the amounts

11  indicated by reference to the legislative appropriations for

12  the state agencies, except as otherwise provided in this

13  section.

14         (c)  The state agencies shall use the funds from the

15  endowment to enhance or support increases in clients served or

16  in program costs in health and human services program areas.

17         (d)  The Secretary of Health, the Secretary of Children

18  and Family Services, the Secretary of Elderly Affairs, and the

19  Director of Health Care Administration shall conduct meetings

20  to discuss program priorities for endowment funding prior to

21  submitting their budget requests to the Executive Office of

22  the Governor and the Legislature. The purpose of the meetings

23  shall be to gain consensus for priority requests and

24  recommended endowment funding levels for those priority

25  requests. An agency head may not designate a proxy for these

26  meetings.

27         (e)  Funds from the endowment may not be used to

28  supplant existing revenues.

29         (f)  When advised by the Revenue Estimating Conference

30  that a deficit will occur with respect to the appropriations

31  from the Tobacco Settlement Clearing Trust Fund in any fiscal

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  1  year, the Governor shall develop a plan of action to eliminate

  2  the deficit. Before implementing the plan of action, the

  3  Governor must comply with the provisions of s. 216.177(2). In

  4  developing the plan of action, the Governor shall, to the

  5  extent possible, preserve legislative policy and intent, and,

  6  absent any specific directions to the contrary in the General

  7  Appropriations Act, any reductions in appropriations from the

  8  Tobacco Settlement Clearing Trust Fund for a fiscal year shall

  9  be prorated among the purposes for which funds were

10  appropriated from the Tobacco Settlement Clearing Trust Fund

11  for that year.

12         (6)(5)  ADMINISTRATION OF THE ENDOWMENT.--

13         (a)  The board is authorized to invest and reinvest

14  funds of the endowment in those securities listed in s.

15  215.47, in accordance with the fiduciary standards set forth

16  in s. 215.47(9) and consistent with an investment plan

17  developed by the executive director and approved by the board.

18  Costs and fees of the board for investment services shall be

19  deducted from the earnings accruing to the endowment.

20         (b)  The endowment shall be managed as an annuity. The

21  investment objective shall be long-term preservation of the

22  real value of the principal and a specified regular annual

23  cash outflow for appropriation, as nonrecurring revenue. The

24  schedule of annual cash outflow shall be included within the

25  investment plan adopted pursuant to paragraph (a).

26         (c)  The board shall establish a separate account for

27  the funds of the endowment. The board shall design and operate

28  an investment portfolio that maximizes the financial return to

29  the endowment, consistent with the risks inherent in each

30  investment, and that is designed to preserve an appropriate

31  diversification of the portfolio.

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  1         (d)  No later than February 15, 2000, the board shall

  2  report on the financial status of the endowment to the

  3  Governor, the Speaker of the House of Representatives, the

  4  President of the Senate, the chairs of the respective

  5  appropriations and appropriate substantive committees of each

  6  chamber, and the Revenue Estimating Conference. Thereafter,

  7  the board shall make a status report to such persons no later

  8  than August 15 and February 15 of each year.

  9         (e)  Accountability for funds from the endowment which

10  have been appropriated to a state agency and distributed by

11  the board shall reside with the state agency. The board is not

12  responsible for the proper expenditure or accountability of

13  funds from the endowment after distribution to a state agency.

14         (f)  The board may collect a fee for service from the

15  endowment no greater than that charged to the Florida

16  Retirement System.

17         (7)(6)  AVAILABILITY OF FUNDS.--

18         (a)  Funds from the endowment shall not be available

19  for appropriation to a state agency until July 1, 2000.

20  Beginning July 1, 2000, the maximum annual amount of endowment

21  funds that may be appropriated shall be in accordance with the

22  following, based on earnings averaged over 3 years:

23         1.  Beginning July 1, 2000, no more than a level of

24  spending representing earnings at a rate of 3 percent.

25         2.  Beginning July 1, 2001, no more than a level of

26  spending representing earnings at a rate of 4 percent.

27         3.  Beginning July 1, 2002, no more than a level of

28  spending representing earnings at a rate of 5 percent.

29         4.  Beginning July 1, 2003, and thereafter, no more

30  than a level of spending representing earnings at a rate of 6

31  percent.

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  1         (b)  The Legislature may not appropriate more than 85

  2  percent of the revenue that is received from participating

  3  manufacturers or pursuant to s. 210.02 in any fiscal year and

  4  made available for appropriation in the subsequent fiscal

  5  year. Revenue received from participating manufacturers or

  6  pursuant to s. 210.02 in any fiscal year which is not

  7  appropriated by the Legislature shall be deposited into the

  8  Lawton Chiles Endowment Fund.

  9         (c)(b)  Notwithstanding the provisions of s. 216.301

10  and pursuant to s. 216.351, all unencumbered balances of

11  appropriations as of June 30 or undisbursed balances as of

12  December 31 shall revert to the endowment's principal.

13         (8)(7)  ENDOWMENT PRINCIPAL; APPROPRIATION OF

14  EARNINGS.--The following amounts are appropriated from the

15  Department of Banking and Finance Tobacco Settlement Clearing

16  Trust Fund to the Lawton Chiles Endowment Fund for Health and

17  Human Services:

18         (a)  For fiscal year 1999-2000, $1.1 billion;

19         (b)  For fiscal year 2000-2001, $200 million;

20         (c)  For fiscal year 2001-2002, $200 million; and

21         (d)  For fiscal year 2002-2003, $200 million; and.

22         (e)  For all subsequent fiscal years, a minimum of $25

23  million.

24         Section 2.  Section 210.02, Florida Statutes, is

25  amended to read:

26         210.02  Cigarette tax imposed; collection.--

27         (1)  An excise or privilege tax, in addition to all

28  other taxes of every kind imposed by law, is imposed upon the

29  sale, receipt, purchase, possession, consumption, handling,

30  distribution, and use of cigarettes in this state, in the

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  1  following amounts, except as hereinafter otherwise provided,

  2  for cigarettes of standard dimensions:

  3         (a)  Upon all cigarettes weighing not more than 3

  4  pounds per thousand, 16.95 mills on each cigarette.

  5         (b)  Upon all cigarettes weighing more than 3 pounds

  6  per thousand and not more than 6 inches long, 33.9 mills on

  7  each cigarette.

  8         (c)  Upon all cigarettes weighing more than 3 pounds

  9  per thousand and more than 6 inches long, 67.8 mills on each

10  cigarette.

11         (2)  The description of cigarettes contained in

12  paragraphs (a), (b), and (c) of subsection (1) are hereby

13  declared to be standard as to dimensions for taxing purposes

14  as provided in this law and should any cigarette be received,

15  purchased, possessed, sold, offered for sale, given away, or

16  used of a size other than of standard dimensions, the same

17  shall be taxed at the rate of 1.41 cents on each such

18  cigarette.

19         (3)  When cigarettes as described in paragraph (1)(a)

20  are packed in varying quantities of 20 cigarettes or less,

21  except manufacturer's free samples authorized under s.

22  210.04(9), the following rate shall govern:

23         (a)  Packages containing 10 cigarettes or less require

24  a 16.95-cent tax.

25         (b)  Packages containing more than 10 but not more than

26  20 cigarettes require a 33.9-cent tax.

27         (4)  When cigarettes as described in paragraph (1)(b)

28  are packed in varying quantities of 20 cigarettes or less,

29  except manufacturer's free samples authorized under s.

30  210.04(9), the following rates shall govern:

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  1         (a)  Packages containing 10 cigarettes or less require

  2  a 33.9-cent tax.

  3         (b)  Packages containing more than 10 but not more than

  4  20 cigarettes require a 67.8-cent tax.

  5         (5)  When cigarettes as described in paragraph (1)(c)

  6  are packed in varying quantities of 20 cigarettes or less,

  7  except manufacturer's free samples authorized under s.

  8  210.04(9), the following rates shall govern:

  9         (a)  Packages containing 10 cigarettes or less require

10  a 67.8-cent tax.

11         (b)  Packages containing more than 10 but not more than

12  20 cigarettes require a 135.6-cent tax.

13         (6)  Beginning February 1, 2001, an additional surtax

14  shall be added to the amounts otherwise provided in this

15  section. The division shall calculate the surtax on January 1

16  of each year, and the surtax shall apply on February 1. The

17  surtax per package shall be calculated as the total annual

18  payment due to the state pursuant to the settlement agreement

19  in the case of The State of Florida et al., v. American

20  Tobacco Company et al., divided by the total number of

21  packages of cigarettes delivered to wholesale dealers for sale

22  in this state by the four settling manufacturers during the

23  previous 12 months, rounded to the nearest tenth of a cent.

24         (7)(6)  This tax shall be paid by the dealer to the

25  division for deposit and distribution as hereinafter provided

26  upon the first sale or transaction within the state, whether

27  or not such sale or transfer be to the ultimate purchaser or

28  consumer.  The seller or dealer shall collect the tax from the

29  purchaser or consumer, and the purchaser or consumer shall pay

30  the tax to the seller.  The seller or dealer shall be

31  responsible for the collection of the tax and the payment of

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  1  the same to the division. All taxes are due not later than the

  2  10th day of the month following the calendar month in which

  3  they were incurred, and thereafter shall bear interest at the

  4  rate of 1 percent per month. If the amount of tax due for a

  5  given period is assessed without allocating it to any

  6  particular month, the interest shall begin with the date of

  7  the assessment.  Whenever cigarettes are shipped from outside

  8  the state to anyone other than a distributing agent or

  9  wholesale dealer, the person receiving the cigarettes shall be

10  responsible for the tax on said cigarettes and the payment of

11  same to the division.

12         (8)(7)  It is the legislative intent that the tax on

13  cigarettes shall be uniform throughout the state.

14         Section 3.  Section 210.20, Florida Statutes, is

15  amended to read:

16         210.20  Employees and assistants; distribution of

17  funds.--

18         (1)  The division under the applicable rules of the

19  Department of Management Services shall have the power to

20  employ such employees and assistants and incur such other

21  expenses as may be necessary for the administration of this

22  part, within the limits of an appropriation for the operation

23  of the Department of Business and Professional Regulation as

24  may be authorized by the General Appropriations Act.

25         (2)  As collections are received by the division from

26  such cigarette taxes, it shall pay the same into a trust fund

27  in the State Treasury designated "Cigarette Tax Collection

28  Trust Fund" which shall be paid and distributed as follows:

29         (a)  The division shall from month to month certify to

30  the Comptroller the amount derived from the cigarette tax

31  imposed by s. 210.02(1)-(5) s. 210.02, less the service

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  1  charges provided for in s. 215.20 and less 0.9 percent of the

  2  amount derived from the cigarette tax imposed by s. 210.02,

  3  which shall be deposited into the Alcoholic Beverage and

  4  Tobacco Trust Fund, specifying the amounts to be transferred

  5  from the Cigarette Tax Collection Trust Fund and credited on

  6  the basis of 5.8 percent of the net collections to the

  7  Municipal Financial Assistance Trust Fund, 32.4 percent of the

  8  net collections to the Revenue Sharing Trust Fund for

  9  Municipalities, 2.9 percent of the net collections to the

10  Revenue Sharing Trust Fund for Counties, and 29.3 percent of

11  the net collections for the funding of indigent health care to

12  the Public Medical Assistance Trust Fund.

13         (b)  The division shall from month to month certify to

14  the Comptroller the amount derived from the cigarette surtax

15  imposed by s. 210.02(6), and that amount shall be transferred

16  from the Cigarette Tax Collection Trust Fund and credited to

17  the Department of Banking and Finance Tobacco Settlement

18  Clearing Trust Fund.

19         (c)(b)  The division shall from month to month certify

20  to the Comptroller the amount derived from the cigarette tax

21  imposed by s. 210.02 on all cigarettes sold at retail on any

22  property of the Inter-American Center Authority, created by

23  chapter 554, and such amount, less the service charge provided

24  for in s. 215.20, shall be paid to said Inter-American Center

25  Authority by warrant drawn by the Comptroller upon the State

26  Treasury, which amount is hereby appropriated monthly out of

27  such Cigarette Tax Collection Trust Fund.

28         (d)(c)  Beginning January 1, 1999, and continuing for

29  10 years thereafter, the division shall from month to month

30  certify to the Comptroller the amount derived from the

31  cigarette tax imposed by s. 210.02, less the service charges

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  1  provided for in s. 215.20 and less 0.9 percent of the amount

  2  derived from the cigarette tax imposed by s. 210.02 which

  3  shall be deposited into the Alcoholic Beverage and Tobacco

  4  Trust Fund, specifying an amount equal to 2.59 percent of the

  5  net collections, and that amount shall be paid to the Board of

  6  Directors of the H. Lee Moffitt Cancer Center and Research

  7  Institute, established under s. 240.512, by warrant drawn by

  8  the Comptroller upon the State Treasury. These funds are

  9  hereby appropriated monthly out of the Cigarette Tax

10  Collection Trust Fund, to be used for the purpose of

11  constructing, furnishing, and equipping a cancer research

12  facility at the University of South Florida adjacent to the H.

13  Lee Moffitt Cancer Center and Research Institute.  In fiscal

14  years 1999-2000 and thereafter with the exception of fiscal

15  year 2008-2009, the appropriation to the H. Lee Moffitt Moffit

16  Cancer Center and Research Institute authorized by this

17  paragraph shall not be less than the amount which would have

18  been paid to the H. Lee Moffitt Cancer Center and Research

19  Institute for fiscal year 1998-1999 had payments been made for

20  the entire fiscal year rather than for a 6-month period

21  thereof.

22         (3)  After all distributions hereinabove provided for

23  have been made, the balance of the revenue produced from the

24  tax imposed by this part shall be deposited in the General

25  Revenue Fund.

26         Section 4.  Section 215.5603, Florida Statutes, is

27  created to read:

28         215.5603  Tobacco Settlement Financing Corporation.--

29         (1)  DEFINITIONS.--As used in this section, the term:

30

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  1         (a)  "Bond" means any bond, debenture, note,

  2  certificate, or other obligation of financial indebtedness

  3  issued by the corporation under this section.

  4         (b)  "Corporation" means the Tobacco Settlement

  5  Financing Corporation created by this section.

  6         (c)  "Department" means the Department of Banking and

  7  Finance or its successor.

  8         (d)  "Insurance" means a contract whereby one

  9  undertakes to indemnify another or pay or allow a specified

10  amount or a determinable benefit upon determinable

11  contingencies.

12         (e)  "Purchase agreement" means a contract between the

13  corporation and the state, acting by and through the

14  department, in which the state sells to the corporation any or

15  all of the state's right, title, and interest in and to the

16  tobacco settlement agreement, including, but not limited to,

17  the moneys to be received thereunder.

18         (f)  "Tobacco settlement agreement" means the

19  settlement agreement, as amended, entered into by the state

20  and participating cigarette manufacturers in settlement of

21  State of Florida et al. v. American Tobacco Co., Case No.

22  95-1466AH (Fla. 15th Cir. Ct. 1996).

23         (2)  CORPORATION CREATION AND AUTHORITY.--

24         (a)  The Tobacco Settlement Financing Corporation is

25  created as a special purpose, not-for-profit, public benefits

26  corporation for the purpose of:

27         1.  Developing a plan by which it will purchase any or

28  all of the state's right, title, and interest in and to the

29  tobacco settlement agreement and will issue bonds to pay the

30  purchase price therefor. The sale of bonds is subject to

31  ratification by law. Funds generated by the sale of the bonds

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  1  shall be used to provide funding for the Lawton Chiles

  2  Endowment Fund; or

  3         2.  Purchasing insurance to insure the state against

  4  the loss of proceeds from the tobacco settlement agreement.

  5         (b)  The corporation shall be governed by a board of

  6  directors consisting of the Governor, the Treasurer, the

  7  Comptroller, the Attorney General, two directors appointed

  8  from the membership of the Senate by the President of the

  9  Senate, and two directors appointed from the membership of the

10  House of Representatives by the Speaker of the House of

11  Representatives. On January 7, 2003, the board shall include

12  the Chief Financial Officer in place of the Treasurer and the

13  Comptroller.

14         (c)  The corporation shall have all the powers of a

15  corporate body under the laws of this state, including, but

16  not limited to, the powers of corporations under chapter 617,

17  to the extent not inconsistent with or restricted by the

18  provisions of this section, including, but not limited to, the

19  power to:

20         1.  Adopt, amend, and repeal bylaws not inconsistent

21  with this section.

22         2.  Sue and be sued.

23         3.  Adopt and use a common seal.

24         4.  Acquire, purchase, hold, lease, and convey real and

25  personal property, contract rights, general intangibles,

26  revenues, moneys, and accounts as is proper or expedient to

27  carry out the purposes of the corporation and this section and

28  to assign, convey, sell, transfer, lease, or otherwise dispose

29  of such property.

30         5.  Elect or appoint and employ such officers, agents,

31  and employees as the corporation deems advisable to operate

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  1  and manage the affairs of the corporation, which officers,

  2  agents, and employees may be employees of the state or of the

  3  state officers and agencies represented on the board of

  4  directors of the corporation.

  5         6.  Make and execute any and all contracts, trust

  6  agreements, trust indentures, and other instruments and

  7  agreements necessary or convenient to accomplish the purposes

  8  of the corporation and this section, including, but not

  9  limited to, investment contracts, swap agreements, liquidity

10  facilities, or the purchase of insurance or reinsurance.

11         7.  Select, retain, and employ professionals,

12  contractors, or agents, which may include the Division of Bond

13  Finance of the State Board of Administration and the Division

14  of State Purchasing of the Department of Management Services,

15  as are necessary or convenient to enable or assist the

16  corporation in carrying out the purposes of the corporation.

17         8.  Do any act or thing necessary or convenient to

18  carry out the purposes of the corporation.

19         (d)  With the approval of at least six of its

20  directors, the corporation may plan to purchase insurance to

21  insure the state, for 7 years, against the loss of 50 percent

22  of the revenues to be paid to the state pursuant to the

23  tobacco settlement agreement. The total premium paid for this

24  insurance may not exceed $200 million. Purchase of insurance

25  is subject to legislative approval.

26         (e)  With the approval of at least six of its

27  directors, the corporation may develop a plan to enter into

28  one or more purchase agreements with the department pursuant

29  to which the corporation will purchase any or all of the

30  state's right, title, and interest in and to the tobacco

31  settlement agreement and will execute and deliver any other

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  1  documents necessary or desirable to effectuate such purchase.

  2  Sale of all or part of the state's right, title, and interest

  3  in and to the tobacco settlement agreement is subject to

  4  approval by the Legislature.

  5         (f)  Subject to approval by law, the corporation may

  6  issue bonds payable from and secured by amounts payable to the

  7  corporation from proceeds of the tobacco settlement agreement.

  8  The corporation is additionally authorized to issue bonds to

  9  refund previously issued bonds and to deposit the proceeds of

10  such bonds as provided in the documents authorizing the

11  issuance of such bonds. The corporation is authorized to do

12  all things necessary or desirable in connection with the

13  issuance of the bonds, including, but not limited to,

14  establishing debt service reserves or other additional

15  security for the bonds, providing for capitalized interest,

16  and executing and delivering any and all documents and

17  agreements. The total principal amount of bonds issued by the

18  corporation shall not exceed $3 billion. The principal amount

19  of bonds issued in any single fiscal year shall not exceed

20  $1.5 billion, beginning with the 2000-2001 fiscal year. The

21  limitation on the principal amount of bonds does not apply the

22  bonds issued to refund previously issued bonds. The term of

23  any such bonds shall not exceed 40 years, and the rate of

24  interest on such bonds may not exceed 10 percent. The

25  corporation may sell bonds through competitive bidding or

26  negotiated contracts, whichever method of sale is determined

27  by the corporation to be in the best interest of the

28  corporation.

29         (g)  The corporation does not have the power to pledge

30  the credit, the general revenues, or the taxing power of the

31  state or of any political subdivision of the state. The

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  1  obligations of the department and the corporation under the

  2  purchase agreement and under any bonds shall not constitute a

  3  general obligation of the state or a pledge of the faith and

  4  credit or taxing power of the state. The bonds shall be

  5  payable from and secured by payments received under the

  6  tobacco settlement agreement, and neither the state nor any of

  7  its agencies shall have any liability on such bonds. Such

  8  bonds shall not be construed in any manner as an obligation of

  9  the state or any of its agencies, the department, the State

10  Board of Administration or entities for which it invests

11  funds, or board members or their respective agencies.

12         (h)  Notwithstanding any other provision of law, any

13  pledge of or other security interest in revenues, money,

14  accounts, contract rights, general intangibles, or other

15  personal property made or created by the corporation resulting

16  from the authority granted by law shall be valid, binding, and

17  perfected from the time such pledge is made or other security

18  interest attaches without any physical delivery of the

19  collateral or further act, and the lien of any such pledge or

20  other security interest shall be valid, binding, and perfected

21  against all parties having claim of any kind in tort, in

22  contract, or otherwise against the corporation irrespective of

23  whether such parties have notice of such claims. No instrument

24  by which such a pledge or security interest is created nor any

25  financing statement need be recorded or filed.

26         (i)  The corporation may validate any bonds issued

27  pursuant to this section and the security for payment

28  therefor, as provided in chapter 75. The validation

29  proceedings may be brought only in the circuit court for Leon

30  County. The notice required under s. 75.06 must be published

31  in Leon County, and the petition and order of the circuit

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  1  court shall be served only on the State Attorney for the

  2  Second Judicial Circuit. The provisions of ss. 75.04(2) and

  3  75.06(2) shall not apply to validation proceedings brought

  4  under this paragraph. The validation of the first bonds issued

  5  pursuant to this section may be appealed to the Supreme Court,

  6  and the Court shall process such appeal expeditiously.

  7         (j)  The state covenants with the holders of bonds of

  8  the corporation that the state will not limit or alter the

  9  authority or the rights under this section vested in the

10  corporation to fulfill the terms of any agreements, including

11  the terms of any purchase agreement, or in any way impair the

12  rights and remedies of such bondholders as long as any such

13  bonds remain outstanding unless adequate provision has been

14  made for the payment of such bonds pursuant to the documents

15  authorizing such bonds.

16         (k)  The corporation shall not take any action that

17  will materially and adversely affect the rights of holders of

18  any bonds issued under this section as long as such bonds are

19  outstanding.

20         (l)  As long as the corporation has any bonds

21  outstanding, the corporation may not file a voluntary petition

22  under chapter 9 of the federal Bankruptcy Code or such

23  corresponding chapter or sections as are in effect from time

24  to time, and neither any public officer nor any organization,

25  entity, or other person may authorize the corporation, while

26  bonds are outstanding, to be or become a debtor under chapter

27  9 of the federal Bankruptcy Code or such corresponding chapter

28  or sections as are in effect from time to time.

29         (m)  The corporation may contract with the State Board

30  of Administration to serve as trustee with respect to bonds

31  issued by the corporation as provided by this section and to

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  1  hold, administer, and invest proceeds of such bonds and other

  2  funds of the corporation and to perform other services

  3  required by the corporation. The State Board of Administration

  4  may perform such services and may contract with others to

  5  provide any such services and to recover the costs and

  6  expenses of providing such services.

  7         (n)  The corporation shall not be deemed to be a

  8  special district or a unit of local government. The provisions

  9  of chapter 120, part I of chapter 287, and ss. 215.57-215.83

10  do not apply to the corporation, to any purchase agreements

11  entered into under this section, or to any bonds issued by the

12  corporation as provided in this section, except that

13  underwriters, financial advisors, and legal counsel must be

14  selected in a manner consistent with the rules adopted

15  pursuant to the State Bond Act for the selection of service

16  providers and underwriters.

17         (o)  In no event shall any of the benefits or earnings

18  of the corporation inure to the benefit of any private person.

19         (p)  Unless such officer, employee, or agent acted in

20  bad faith or with malicious purpose, there shall be no

21  liability on the part of, and no cause of action shall arise

22  against, any board member of the corporation or any employee

23  of the corporation or the state for any action taken by them

24  in the performance of their duties under this section.

25         (q)  The corporation is exempt from taxation and

26  assessments of any nature whatsoever upon its income and any

27  property, assets, or revenues acquired, received, or used in

28  the furtherance of the purposes provided in this section.

29         (r)  The corporation and its corporate existence shall

30  continue until terminated by law; however, the corporation may

31  not be terminated while it has bonds outstanding unless

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  1  adequate provision is made for the payment of such bonds

  2  pursuant to the documents authorizing the issuance of such

  3  bonds. Upon termination of the corporation, all its rights and

  4  assets in excess of its obligations shall pass to and be

  5  vested in the Lawton Chiles Endowment Fund.

  6         (s)  The Auditor General may conduct a financial audit

  7  of the accounts and records of the corporation.

  8         (3)  POWERS OF THE DEPARTMENT.--

  9         (a)  The department is authorized, on behalf of the

10  state, to do all things necessary or desirable to assist the

11  corporation in the execution of its responsibilities, and may:

12         1.  Enter into one or more purchase agreements, which

13  may not take effect until ratified by law, to sell to the

14  corporation any or all of the state's right, title, and

15  interest in and to the tobacco settlement agreement;

16         2.  Enter any administrative agreements with the

17  corporation, which may not take effect until ratified by law,

18  to fund the administration, operation, and expenses of the

19  corporation from moneys appropriated for such purpose; and

20         3.  Execute and deliver any and all other documents and

21  agreements, which may not take effect until ratified by law,

22  necessary or desirable in connection with the sale of any or

23  all of the state's right, title, and interest in and to the

24  tobacco settlement agreement to the corporation or the

25  issuance of the bonds by the corporation.

26         (b)  The state covenants with the holders of bonds of

27  the corporation that the state will not limit or alter the

28  authority or the rights under this section vested in the

29  department to fulfill the terms of any agreements, including

30  the terms of any purchase agreement, or in any way impair the

31  rights and remedies of such bondholders as long as any such

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  1  bonds remain outstanding, unless adequate provision has been

  2  made for the payment of such bonds pursuant to the documents

  3  authorizing such bonds.

  4         (c)  Subject to the prior legislative approval set

  5  forth in paragraph (2)(e), the department is authorized, on

  6  behalf of the state, to make any covenant, representation, or

  7  warranty necessary or desirable in connection with the sale of

  8  any or all of the state's right, title, and interest in and to

  9  the tobacco settlement agreement to the corporation or the

10  issuance of the bonds by the corporation.

11         Section 5.  If any provision of this act or its

12  application to any person or circumstance is held invalid, the

13  invalidity does not affect other provisions or applications of

14  the act which can be given effect without the invalid

15  provision or application, and to this end the provisions of

16  this act are severable.

17         Section 6.  This act shall take effect upon becoming a

18  law.

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  1          STATEMENT OF SUBSTANTIAL CHANGES CONTAINED IN
                       COMMITTEE SUBSTITUTE FOR
  2                            CS/SB 1998

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  4  The committee substitute for the committee substitute creates
    the Tobacco Settlement Financing Corporation. Its board of
  5  directors includes the Governor, Treasurer, Comptroller, and
    Attorney General, or their respective designees, and two
  6  directors appointed from the Senate by the President of the
    Senate, and two from the House of Representatives appointed by
  7  the Speaker of the House. It authorizes the board of directors
    to plan a purchase of insurance to insure the state, for seven
  8  years, against the loss of 50 percent of the revenues to be
    paid to the state pursuant to the tobacco settlement
  9  agreement, subject to approval by the legislature. The total
    premium may not exceed $200,000,000. The decision to begin
10  such a plan must be approved by six members of the board. It
    also authorizes the board of directors to develop a plan to
11  enter into an agreement to purchase part of the state's
    tobacco settlement income, and, subject to approval by the
12  legislature, to purchase part of the state's tobacco
    settlement income. The decision to develop the plan must be
13  approved by six members of the board. Also subject to approval
    by the legislature, the board of directors may issue bonds
14  payable from and secured by tobacco settlement payments. The
    total principal amount of bonds issued by the corporation
15  shall not exceed $3.0 billion, and the amount issued in any
    one year may not exceed $1.5 billion. The term of the bonds
16  may not exceed 40 years and the rate of interest on such bonds
    may not exceed 10 percent. The corporation shall administer
17  the sale of bonds if approval is granted by the legislature.

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