House Bill 2415e1

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                                   CS/HB 2415, First Engrossed/ntc



  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 imposition of the tax on

  8         the sales price of communications services, the

  9         cost of operating a substitute communications

10         system, and the sales price of direct-to-home

11         satellite service; providing for computation of

12         tax rates by the Revenue Estimating Conference

13         and for approval by the Legislature; providing

14         for collection and remittance of the taxes on

15         communications services imposed by chapters 202

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

17         limitation on such taxes on certain interstate

18         communications services; requiring the

19         purchaser to obtain a direct-pay permit;

20         providing exemptions for certain sales to

21         residential households, to governmental

22         entities, and to certain religious or

23         educational organizations; providing

24         legislative intent with respect to future

25         findings of invalidity, exemptions, and local

26         government franchise fees; providing for

27         credits for taxes paid in other jurisdictions;

28         providing special provisions for users of

29         substitute communications systems; providing

30         for payment and collection of the taxes on

31         communications; providing for sales for resale;


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                                   CS/HB 2415, First Engrossed/ntc



  1         providing requirements for registration of

  2         dealers of communications services; providing

  3         penalties; providing for fees; providing for

  4         annual resale certificates; providing

  5         procedures for revocation of registration;

  6         providing for disposition of the proceeds of

  7         the taxes on communications services;

  8         authorizing counties and municipalities to levy

  9         a discretionary local communications services

10         tax; providing intent regarding tax rates;

11         providing for imposition of a discretionary

12         sales surtax levied by a county or school board

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

14         communications services tax; providing for

15         application of local taxes to substitute

16         communications systems; providing a limitation

17         on local taxes on certain interstate

18         communications services; requiring the

19         purchaser to obtain a direct-pay permit;

20         providing for use of tax revenues; providing

21         for credit against local taxes for fees

22         required under a franchise agreement; providing

23         for computation by the Revenue Estimating

24         Conference of the initial and maximum rates for

25         local taxes and providing for approval by the

26         Legislature; providing for effectiveness of the

27         initial rates and for increase by emergency

28         ordinance under certain conditions; requiring

29         providers of communications services and local

30         taxing jurisdictions to furnish information;

31         providing for determination by the Revenue


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                                   CS/HB 2415, First Engrossed/ntc



  1         Estimating Conference of a rate conversion

  2         factor for counties and school boards that levy

  3         a discretionary sales surtax and providing for

  4         approval by the Legislature; providing for

  5         certain automatic rate reductions; providing

  6         for effective dates and notification with

  7         respect to adoption, repeal, or rate changes of

  8         local taxes; providing procedures and

  9         requirements for determination of the local

10         taxing jurisdiction in which a service address

11         is located; providing for creation of an

12         electronic database by the Department of

13         Revenue; providing for certification of

14         databases by the department; providing effect

15         on dealers who do not use the specified methods

16         for such determination; providing procedures

17         and requirements for refunds or credits of

18         communications services taxes; specifying that

19         the authority of public bodies to require taxes

20         or other impositions from dealers of

21         communications services for occupying roads and

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

23         prohibiting public bodies from levying

24         specified taxes and other charges; providing

25         for jurisdiction for suits against dealers;

26         providing for dealers not qualified to do

27         business in this state; specifying powers of

28         the department; providing for rules; providing

29         requirements for the filing of returns and

30         payment of taxes; providing penalties;

31         providing for rules for self-accrual; providing


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                                   CS/HB 2415, First Engrossed/ntc



  1         for a dealer's credit; providing penalties for

  2         failure to file returns or for filing false or

  3         fraudulent returns; providing for credits or

  4         refunds for bad debts; requiring certain

  5         dealers to remit taxes by electronic funds

  6         transfer and make returns through an electronic

  7         data interchange; providing for payment of

  8         taxes upon sale or quitting of business;

  9         providing for notice to certain persons

10         regarding a dealer's delinquency and providing

11         such persons' duties; providing a penalty;

12         providing for cooperation of state and local

13         agencies; providing that taxes collected become

14         government funds; providing penalties for the

15         theft of government funds; providing department

16         powers regarding warrants, tax executions, and

17         writs of garnishment; providing recordkeeping

18         requirements for dealers; providing a penalty;

19         authorizing sampling by the department;

20         providing for examination of records; providing

21         for audits; providing for assessment of

22         interest and penalties; providing powers of the

23         department to assess from estimates; requiring

24         that taxes be separately stated; prohibiting

25         certain advertising or refunds by dealers;

26         providing a penalty; providing department

27         powers with respect to hearings, cash deposits

28         or bonds, and subpoenas; providing for venue;

29         providing special rules for the administration

30         of local taxes; providing for an advisory

31         committee to advise the executive director of


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                                   CS/HB 2415, First Engrossed/ntc



  1         the department regarding implementation of

  2         communications services taxes; amending s.

  3         72.011, F.S.; authorizing taxpayers to contest

  4         assessments or denials of refund under ch. 202,

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

  6         Administrative Procedure Act; amending s.

  7         213.05, F.S.; including ch. 202, F.S., within

  8         the revenue laws for which the department has

  9         responsibility; amending s. 212.20, F.S.;

10         providing for distribution of portions of the

11         communications services tax; amending s.

12         166.231, F.S.; providing that the exemption

13         from the municipal public service tax for

14         telecommunications services for resale includes

15         resale by way of a prepaid calling arrangement;

16         providing that taxes not collected thereon

17         prior to July 1, 2000, need not be paid;

18         repealing s. 166.231(9), F.S., which provides

19         for levy of the municipal public service tax on

20         telecommunication services, effective January

21         1, 2002; conforming language; amending s.

22         166.233, F.S.; conforming language; amending s.

23         203.01, F.S.; providing that the exemption from

24         the gross receipts tax for telecommunication

25         services for resale includes resale by way of a

26         prepaid calling arrangement; providing for a

27         gross receipts tax on communications services,

28         effective January 1, 2002, to be applied

29         pursuant to ch. 202, F.S.; providing for

30         computation of the tax rate by the Revenue

31         Estimating Conference and for approval by the


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                                   CS/HB 2415, First Engrossed/ntc



  1         Legislature; amending s. 203.012, F.S.;

  2         removing and revising definitions relating to

  3         the gross receipts tax, to conform; repealing

  4         s. 203.013, F.S., which provides for payment of

  5         the gross receipts tax on interstate private

  6         communications services, and ss. 203.60,

  7         203.61, 203.62, and 203.63, F.S., which provide

  8         for payment of the gross receipts tax on other

  9         interstate and international telecommunication

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

11         providing that the sale or recharge of a

12         prepaid calling arrangement shall be treated as

13         a sale of tangible personal property under ch.

14         212, F.S.; providing that the sale of

15         telecommunication services to a person who

16         furnishes such services pursuant to such an

17         arrangement is a sale for resale; providing

18         that taxes not collected thereon prior to July

19         1, 2000, need not be paid; removing the

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

21         telecommunication service, telegraph messages,

22         long distance telephone calls, and television

23         system program service, effective January 1,

24         2002; amending s. 212.054, F.S.; providing that

25         charges for prepaid calling arrangements are

26         subject to discretionary sales surtaxes;

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

28         providing requirements with respect to the

29         authority of counties and municipalities to

30         regulate the placement of telecommunications

31         facilities in the public roads or


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                                   CS/HB 2415, First Engrossed/ntc



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

  2         Secretary of State; revising such requirements,

  3         effective January 1, 2002, and providing for

  4         application to providers of communications

  5         services; requiring municipalities and charter

  6         counties and noncharter counties to choose

  7         whether or not to impose permit fees on such

  8         providers and providing requirements with

  9         respect to such fees; providing effect of such

10         choice on the rate of the local communications

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

12         government; providing that the authority of

13         municipalities and counties to require

14         franchise fees from such providers is preempted

15         by the state; authorizing municipalities and

16         counties to request certain in-kind

17         requirements, institutional networks, and

18         contributions from cable service providers;

19         providing for a legislative study with respect

20         to state policy regarding such in-kind

21         requirements and contributions; amending s.

22         212.031, F.S.; revising the exemption from the

23         tax on the lease or rental of or license in

24         real property for streets or rights-of-way and

25         improvements located thereon used by a utility

26         or cable television company; including such

27         exemption within provisions relating to leases

28         involving multiple use of property; providing

29         status of revenues received under the act with

30         respect to taxes or fees previously imposed and

31         bonded indebtedness; providing appropriations


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                                   CS/HB 2415, First Engrossed/ntc



  1         and authorizing positions; repealing the

  2         following, effective June 30, 2001:  ss.

  3         202.10, 202.11, 202.20, 202.26, and 202.37,

  4         F.S., and ss. 3-11, 13-17, and 19-28 of the

  5         act, which constitute the creation of ch. 202,

  6         F.S., effective January 1, 2002, to provide for

  7         the taxation of the sale of communications

  8         services; ss. 33-35 of the act, which amend ss.

  9         72.011, 213.05, and 212.20, F.S., to provide

10         related administrative provisions effective

11         January 1, 2002; ss. 38 and 39 of the act,

12         which repeal s. 166.231(9), F.S., and amend ss.

13         166.231 and 166.233, F.S., to remove levy of

14         the municipal public service tax on

15         telecommunication services effective January 1,

16         2002; ss. 41-43 of the act, which amend ss.

17         203.01 and 203.012, F.S., and repeal ss.

18         203.013 and 203.60-203.63, F.S., to provide for

19         a gross receipts tax on communications

20         services, effective January 1, 2002, to be

21         applied pursuant to ch. 202, F.S.; ss. 48 and

22         49 of the act, which amend ss. 212.05 and

23         212.054, F.S., to remove the imposition of tax

24         under ch. 212, F.S., on telecommunication

25         service effective January 1, 2002; s. 51 of the

26         act, which amends s. 337.401, F.S., relating to

27         the authority of counties and municipalities to

28         regulate the placement of telecommunications

29         facilities in roads and rights-of-way and to

30         impose permit fees and franchise fees,

31         effective January 1, 2002; and ss. 54 and 55 of


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                                   CS/HB 2415, First Engrossed/ntc



  1         the act, which provide for application of

  2         amendments made by the act; abolishing, on June

  3         30, 2001, an advisory committee appointed

  4         pursuant to the act; amending s. 337.401, F.S.,

  5         effective June 30, 2001, to remove amendments

  6         made by the act which take effect January 1,

  7         2001; providing effective dates.

  8

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

10

11         Section 1.  Section 202.10, Florida Statutes, is

12  created to read:

13         202.10  Short title.--This chapter may be cited as the

14  "Communications Services Tax Simplification Law."

15         Section 2.  Section 202.11, Florida Statutes, is

16  created to read:

17         202.11  Definitions.--As used in this chapter:

18         (1)  "Actual cost of operating a substitute

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

20  depreciation, interest, maintenance, repair, and other

21  expenses directly attributable to the operation of such

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

23  included in actual cost is the depreciation expense claimed

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

25  payment required by a lease or rental contract or agreement

26  must be included within the actual cost of operating the

27  substitute communications system.

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

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

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

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


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                                   CS/HB 2415, First Engrossed/ntc



  1  programming is transmitted over facilities owned or operated

  2  by the cable service provider or over facilities owned or

  3  operated by one or more other dealers of communications

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

  5  services by which programming is transmitted or broadcast by

  6  microwave or other equipment directly to the purchaser's

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

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

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

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

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

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

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

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

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

16  regardless of the protocol used for such transmission or

17  conveyance. The term does not include:

18         (a)  Information services.

19         (b)  Installation or maintenance of wiring or equipment

20  on a customer's premises.

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

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

23  limited to, directory advertising.

24         (e)  Bad check charges.

25         (f)  Late payment charges.

26         (g)  Billing and collection services.

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

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

29  services.

30

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                                   CS/HB 2415, First Engrossed/ntc



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

  2  department as a provider of communications services in this

  3  state.

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

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

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

  7  303(v).

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

  9  capability for generating, acquiring, storing, transforming,

10  processing, retrieving, using, or making available information

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

12  electronic publishing, web-hosting service, and end-user 900

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

14  other programming service that uses point-to-multipoint

15  distribution by which programming is delivered, transmitted,

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

17  be necessary for selecting and using the service, regardless

18  of whether the programming is delivered, transmitted, or

19  broadcast over facilities owned or operated by the seller or

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

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

22  cable service.

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

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

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

26  which is carried between mobile stations or receivers and land

27  stations, or by mobile stations communicating among

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

29  communications services, personal communications services,

30  paging services, specialized mobile radio services, and any

31


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                                   CS/HB 2415, First Engrossed/ntc



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

  2  service.

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

  4         (10)  "Prepaid calling arrangement" means the

  5  separately stated retail sale by advance payment of

  6  communications services that consist exclusively of telephone

  7  calls originated by using an access number, authorization

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

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

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

11  amount.

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

13  obligated to pay for communications services.

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

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

16  component part of or for integration into communications

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

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

19  the rules adopted thereunder.

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

21  services for a consideration.

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

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

24  communications services in this state, including any property

25  or other services that are part of the sale.

26         (a)  The sales price of communications services shall

27  also include, whether or not separately stated, charges for

28  any of the following:

29         1.  Separately identified components of the charge or

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

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


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                                   CS/HB 2415, First Engrossed/ntc



  1  taxes, taxes measured by net income, and federal

  2  universal-service fund fees.

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

  4  communications services.

  5         3.  The detailed billing of communications services.

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

  7  communications service.

  8         5.  Central office and custom calling features.

  9         6.  Voice mail and other messaging service.

10         7.  Directory assistance.

11         (b)  The sales price of communications services does

12  not include charges for any of the following:

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

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

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

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

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

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

19  stated separately.

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

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

22  to, regulatory fees and emergency telephone surcharges, which

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

24  fee or assessment is separately stated.

25         3.  Local telephone service paid for by inserting coins

26  into coin-operated communications devices available to the

27  public.

28         4.  The sale or recharge of a prepaid calling

29  arrangement.

30

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                                   CS/HB 2415, First Engrossed/ntc



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

  2  services, defined as a radio service provided to purchasers

  3  while on board an aircraft.

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

  5  in connection with its business of providing communications

  6  services.

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

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

  9  are stated separately from the charges for communications

10  services.

11         (15)  "Service address" means:

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

13  satellite services, the location where the customer receives

14  the services in this state.

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

16  the location of the communications equipment from which

17  communications services originate or at which communications

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

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

20  as in the case of mobile communications services, paging

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

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

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

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

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

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

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

28  service paid through a credit or payment mechanism that does

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

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

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


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                                   CS/HB 2415, First Engrossed/ntc



  1  first three digits of the seven-digit originating telephone

  2  number.

  3         (16)  "Substitute communications system" means any

  4  telephone system, or other system capable of providing

  5  communications services, which a person purchases, installs,

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

  7  herself with services used as a substitute for communications

  8  services provided by a dealer of communications services.

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

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

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

12  251(c)(3).

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

14  Florida Statutes, is created to read:

15         202.12  Sales of communications services.--The

16  Legislature finds that every person who engages in the

17  business of selling communications services at retail in this

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

19  the Legislature that the tax imposed by chapter 203 be

20  administered as provided in this chapter.

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

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

23  payable as follows:

24         (a)  At the rate calculated pursuant to section 30 of

25  this act applied to the sales price of the communications

26  service, except for direct-to-home satellite service, which:

27         1.  Originates and terminates in this state, or

28         2.  Originates or terminates in this state and is

29  charged to a service address in this state,

30

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                                   CS/HB 2415, First Engrossed/ntc



  1  when sold at retail, computed on each taxable sale for the

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

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

  4  transactions and remitted with the tax imposed by this

  5  paragraph. If no tax is imposed by this paragraph by reason of

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

  7  nevertheless be collected and remitted in the manner and at

  8  the time prescribed for tax collections and remittances under

  9  this chapter.

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

11  actual cost of operating a substitute communications system,

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

13  not apply to the use by any dealer of his or her own

14  communications system to conduct a business of providing

15  communications services or any communications system operated

16  by a county, a municipality, the state, or any political

17  subdivision of the state. The gross receipts tax imposed by

18  chapter 203 shall be applied to the same costs, and remitted

19  with the tax imposed by this paragraph.

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

21  Conference and approved by the Legislature on the retail sales

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

23  state. The rate computed by the Revenue Estimating Conference

24  shall be the sum of:

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

26         2.  The weighted average, based on the aggregate

27  population in the respective taxing jurisdictions, of the rate

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

29  charter counties and the rate computed under such subparagraph

30  for all other counties.

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                                   CS/HB 2415, First Engrossed/ntc



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

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

  3  The gross recepts tax imposed by chapter 203 shall be

  4  collected on the same taxable transactions and remitted with

  5  the tax imposed by this paragraph.

  6         (2)  A dealer of taxable communications services shall

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

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

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

10  services prescribed in chapter 203 and the applicable rate of

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

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

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

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

15  to the department, identify the portion thereof which consists

16  of taxes remitted pursuant to chapter 203. Return forms

17  prescribed by the department shall facilitate such reporting.

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

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

20  203.01(1)(a)2. shall not exceed $100,000 per calendar year on

21  charges to any person for interstate communications services

22  that originate outside this state and terminate within this

23  state.  This subsection applies only to holders of a

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

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

26  permit.  Upon application, the department may issue a

27  direct-pay permit to the purchaser of communications services

28  authorizing such purchaser to pay tax on such services

29  directly to the department if the majority of such services

30  used by such person are for communications originating outside

31  of this state and terminating in this state.  Any dealer of


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                                   CS/HB 2415, First Engrossed/ntc



  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 taxes imposed under this

  4  section and s. 203.01(1)(a)2. on such services. Tax payments

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

  6  As used in this subsection, "person" means a single legal

  7  entity and does not mean a group or combination of affiliated

  8  entities or entities controlled by one person or group of

  9  persons.

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

11  Florida Statutes, is created to read:

12         202.125  Sales of communications services; specified

13  exemptions.--

14         (1)  The separately stated sales price of

15  communications services sold to residential households is

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

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

18  public lodging establishment as defined in chapter 509, any

19  mobile communications service, any cable service, or any

20  direct-to-home satellite service.

21         (2)  The sale of communications services provided to

22  the Federal Government, any agency or instrumentality of the

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

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

25  administered pursuant to ss. 202.12 and 202.19.

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

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

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

29  governmental entity is exempt from the taxes imposed or

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

31  does not inure to any transaction otherwise taxable under this


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                                   CS/HB 2415, First Engrossed/ntc



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

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

  3  card even when that employee is subsequently reimbursed by the

  4  governmental entity.

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

  6  or educational organization that is exempt from federal income

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

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

  9  and 202.19.

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

11  Florida Statutes, is created to read:

12         202.13  Intent.--

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

14  imposed or administered under this chapter is declared

15  invalid, ineffective, inapplicable, unconstitutional, or void

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

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

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

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

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

21  declaration shall not affect the taxes imposed or administered

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

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

24  extent as if such exemption never existed.

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

26  the taxes imposed or administered pursuant to this chapter

27  only the communications services set forth in this chapter as

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

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

30  United States.

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                                   CS/HB 2415, First Engrossed/ntc



  1         (3)  The tax on dealers of communications services

  2  authorized under this chapter, including the tax imposed by

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

  4  the authority of local governments to levy franchise fees as

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

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

  7  communications services.

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

  9  Florida Statutes, is created to read:

10         202.14  Credit against tax imposed.--To prevent actual

11  multistate taxation of communications services subject to tax

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

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

14  local jurisdiction in such other state with respect to such

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

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

17  the other state or local jurisdiction.

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

19  Florida Statutes, is created to read:

20         202.15  Special rule for users of substitute

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

22  rents, or leases a substitute communications system must

23  register with the department and pay the taxes imposed or

24  administered pursuant to s. 202.12 annually pursuant to rules

25  prescribed by the department.

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

27  Florida Statutes, is created to read:

28         202.16  Payment.--The taxes imposed or administered

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

30  dealers of taxable communications services on the sale at

31  retail in this state of communications services taxable under


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                                   CS/HB 2415, First Engrossed/ntc



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

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

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

  4  in the same manner as a cash sale.

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

  6  202.12(1)(b) and 202.15, the taxes collected under this

  7  chapter and chapter 203, including any penalties or interest

  8  attributable to the nonpayment of such taxes or for

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

10  by the purchaser of the communications service and shall be

11  collected from such person by the dealer of communications

12  services.

13         (b)  Each dealer of communications services selling

14  communications services in this state shall collect the taxes

15  imposed under this chapter and chapter 203 from the purchaser

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

17  from all other charges on the bill or invoice.

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

19  a component part of or integrated into a communications

20  service or prepaid calling arrangement for resale, including,

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

22  charges paid by providers of mobile communication services or

23  other communication services, charges paid by cable service

24  providers for the transmission of video or other programming

25  by another dealer of communications services, charges for the

26  sale of unbundled network elements, and any other intercompany

27  charges for the use of facilities for providing communications

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

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

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

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                                   CS/HB 2415, First Engrossed/ntc



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

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

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

  4  communications services imposed pursuant to this chapter and

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

  6  amounts and brackets applicable to each taxable sale such that

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

  8  rate imposed pursuant to this chapter and chapter 203.

  9         (4)  Each purchaser of a communications service is

10  liable for the taxes imposed under this chapter and chapter

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

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

13  payment of the tax to a dealer of communications services

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

15  purchaser from further liability for the tax.

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

17  Florida Statutes, is created to read:

18         202.17  Registration.--

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

20  dealer of communications services must file with the

21  department an application for a certificate of registration.

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

23  providing communications services without first obtaining a

24  certificate of registration. The failure or refusal to submit

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

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

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

28  who fails or refuses to register shall pay an initial

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

30  prescribed under subsection (4). However, this fee increase

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                                   CS/HB 2415, First Engrossed/ntc



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

  2  reasonable cause.

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

  4  registration must be completed by the dealer of communications

  5  services before engaging in business. The application for a

  6  certificate of registration must contain the information

  7  required by rule of the department.

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

  9  application, shall grant to the applicant a certificate of

10  registration.

11         (4)  Each application required by paragraph (3)(a) must

12  be accompanied by a registration fee of $5, to be deposited in

13  the General Revenue Fund, and must set forth:

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

15  business within this state.

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

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

18  where records are available for inspection.

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

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

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

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

23  applicant is a corporation organized under the laws of another

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

25  the application a certified copy of the certificate or license

26  issued by the Department of State showing that the corporation

27  is authorized to transact business in this state.

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

29         (5)  Certificates of registration issued by the

30  department are not assignable.

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                                   CS/HB 2415, First Engrossed/ntc



  1         (6)  In addition to the certificate of registration,

  2  the department shall provide to each newly registered dealer

  3  an annual resale certificate that is valid for the remaining

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

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

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

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

  8  once during each applicable reporting period.

  9         (7)  A certificate of registration issued by the

10  department may be revoked by the department or its designated

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

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

13  registration, the department must schedule an informal

14  conference at which the dealer may present evidence regarding

15  the department's intended revocation or enter into a

16  compliance agreement with the department. The department must

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

18  place, and date of the scheduled informal conference by

19  written notification sent by United States mail to the

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

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

22  the informal conference and present evidence refuting the

23  department's intended revocation or enter into a compliance

24  agreement with the department which resolves the dealer's

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

26  department shall issue an administrative complaint under s.

27  120.60 if the dealer fails to attend the department's informal

28  conference, fails to enter into a compliance agreement with

29  the department resolving the dealer's noncompliance with this

30  chapter, or fails to comply with the executed compliance

31  agreement.


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                                   CS/HB 2415, First Engrossed/ntc



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

  2  Florida Statutes, is created to read:

  3         202.18  Allocation and disposition of tax

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

  5  remitted under this chapter shall be treated as follows:

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

  7  202.12(1)(a) and (b) shall be divided as follows:

  8         (a)  The portion of such proceeds which constitutes

  9  gross receipts taxes, imposed at the rate prescribed in

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

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

12         (b)  The remaining portion shall be distributed

13  according to s. 212.20(6).

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

15  202.12(1)(c) shall be divided as follows:

16         (a)  The portion of such proceeds which constitutes

17  gross receipts taxes, imposed at the rate prescribed in

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

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

20         (b)  The portion of such proceeds which is derived from

21  the rate component specified in s. 202.12(1)(c)1. shall be

22  allocated to the state and distributed pursuant to s.

23  212.20(6).

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

25  allocated to the municipalities and counties in proportion to

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

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

28  218.65. The department shall distribute the appropriate amount

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

30  that local communications services taxes are distributed

31  pursuant to subsection (3).


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                                   CS/HB 2415, First Engrossed/ntc



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

  2  proceeds of each local communications services tax levied by a

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

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

  5  the Local Communications Services Tax Clearing Trust Fund and

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

  7  However, the proceeds of any communications services tax

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

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

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

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

12  funds collected and received by the department pursuant to a

13  specific levy authorized by such section, including any

14  interest and penalties attributable to the tax levy.

15         (b)  The amount deducted for the costs of

16  administration may not exceed 1 percent of the total revenue

17  generated for all municipalities, counties, and school boards

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

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

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

21  202.19. The total cost of administration shall be prorated

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

23  amount collected for a particular jurisdiction to the total

24  amount collected for all such jurisdictions.

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

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

27  amounts deducted for costs of administration in accordance

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

29  appropriate jurisdictions. The proceeds of taxes imposed

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

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                                   CS/HB 2415, First Engrossed/ntc



  1  manner as discretionary surtaxes are distributed, in

  2  accordance with ss. 212.054 and 212.055.

  3         2.  The department shall make any adjustments to the

  4  distributions pursuant to this paragraph which are necessary

  5  to reflect the proper amounts due to individual jurisdictions.

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

  7  Florida Statutes, is created to read:

  8         202.19  Authorization to impose local communications

  9  services tax.--

10         (1)  The governing authority of each county and

11  municipality may, by ordinance, levy a discretionary

12  communications services tax.

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

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

15  shall be up to the maximum rate determined for municipalities

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

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

18  the maximum rate determined for other counties in accordance

19  with s. 202.20(2).

20

21  The rate imposed by any municipality or county shall be

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

23  up to the nearest one-tenth percent.

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

25  (2) reflect the rates for communications services taxes

26  imposed under this chapter which are necessary for each

27  municipality or county to raise the maximum amount of revenues

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

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

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

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


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                                   CS/HB 2415, First Engrossed/ntc



  1  legislative intent that the maximum rates for charter counties

  2  be calculated by treating them as having had the same

  3  authority as municipalities to impose franchise fees on

  4  recurring local telecommunication service revenues prior to

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

  6  authority of charter counties to impose such fees is in

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

  8  expression of legislative intent that charter counties

  9  actually do or do not possess such authority.

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

11  fee or other consideration to which the municipality or county

12  is otherwise entitled for granting permission to dealers of

13  communications services or providers of cable television

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

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

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

17  the provision of communications services.

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

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

20  payment of consideration or to require the payment of

21  regulatory fees or assessments by persons using or occupying

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

23  dealer of communications services.

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

25  the tax imposed by any municipality shall be on all

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

27         1.  Originate or terminate in this state; and

28         2.  Are charged to a service address in the

29  municipality.

30

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                                   CS/HB 2415, First Engrossed/ntc



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

  2  shall be on all communications services subject to tax under

  3  s. 202.12 which:

  4         1.  Originate or terminate in this state; and

  5         2.  Are charged to a service address in the

  6  unincorporated area of the county.

  7         (5)  In addition to the communications services taxes

  8  authorized by subsection (1), a discretionary sales surtax

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

10  imposed as a local communications services tax under this

11  section, and the rate shall be determined in accordance with

12  s. 202.20(5). Each such tax rate shall be applied, in addition

13  to the other tax rates applied under this chapter, to

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

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

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

17         (6)  Notwithstanding any other provision of this

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

19  any direct-to-home satellite service.

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

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

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

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

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

25  conduct a business of providing communications services or to

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

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

28  state.

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

30  imposed under this section shall not exceed $25,000 per

31  calendar year on communications services charges billed to a


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                                   CS/HB 2415, First Engrossed/ntc



  1  service address located in a municipality or county imposing a

  2  local communications services tax for interstate

  3  communications services that originate outside this state and

  4  terminate within this state. This subsection applies only to

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

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

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

  8  a direct-pay permit to the purchaser of communications

  9  services authorizing such purchaser to pay tax on such

10  services directly to the department if the majority of such

11  services used by such person are for communications

12  originating outside of this state and terminating in this

13  state. Any dealer of communications services furnishing

14  communications services to the holder of a valid direct-pay

15  permit is relieved of the obligation to collect and remit the

16  tax on such services. Tax payments and returns pursuant to a

17  direct-pay permit shall be monthly. As used in this

18  subsection, "person" means a single legal entity and does not

19  mean a group or combination of affiliated entities or entities

20  controlled by one person or group of persons.

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

22  subsection (1) may use the revenues raised by such tax for any

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

24  revenues for the repayment of current or future bonded

25  indebtedness. Revenues raised by a tax imposed under

26  subsection (5) shall be used for the same purposes as the

27  underlying discretionary sales surtax imposed by the county or

28  school board under s. 212.055.

29         (10)  Notwithstanding any provision of law to the

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

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                                   CS/HB 2415, First Engrossed/ntc



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

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

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

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

  5  any franchise agreement or ordinance with respect to the

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

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

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

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

10  services or revenues.

11         Section 12.  Section 202.20, Florida Statutes, is

12  created to read:

13         202.20  Local communications services tax rates.--

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

15  Estimating Conference shall compute for each municipality and

16  county the rate of local communications services tax which

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

18  such local taxing jurisdiction to raise in calendar year 1999,

19  through the imposition of a local communications services tax,

20  revenues equal to the sum of:

21         1.  The amount of revenues estimated to have been

22  received in calendar year 1999 based on the revenues that were

23  actually received from the replaced revenue sources in the

24  fiscal year ending September 30, 1999, adjusted to reflect the

25  growth reasonably estimated to have occurred in the final

26  quarter of calendar year 1999; and

27         2.  An amount representing the revenues the

28  jurisdiction would have received from the replaced revenue

29  sources during the month immediately preceding the month in

30  which local taxing jurisdictions receive their first

31  distributions of revenues under this chapter.


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                                   CS/HB 2415, First Engrossed/ntc



  1

  2  In computing the amounts in subparagraphs 1. and 2., the

  3  Revenue Estimating Conference shall consider, to the maximum

  4  extent practicable, changes in local replaced revenues, other

  5  than changes due to normal growth, and shall adjust the

  6  amounts in subparagraphs 1. and 2. accordingly.

  7         (b)  The rates computed by the Revenue Estimating

  8  Conference shall be presented to the Legislature for review

  9  and approval during the 2001 Regular Session. The rates

10  approved by the Legislature under this subsection shall be

11  effective in the respective local taxing jurisdictions on

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

13  governing authority or voters of such local taxing

14  jurisdictions. The rate computed and approved pursuant to this

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

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

17  of foregone revenues addressed in subparagraph (a)2.

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

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

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

21  received by that local government from the local

22  communications services tax imposed under s. 202.19(1) are

23  less than the revenues received from the replaced revenue

24  sources for the corresponding 2001 period; plus reasonably

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

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

27  immediately preceding 5-year period; plus an amount

28  representing the revenues from the replaced revenue sources

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

30  required to forego, the governing authority may adjust the

31  rate of the local communications services tax upward to the


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                                   CS/HB 2415, First Engrossed/ntc



  1  extent necessary to generate the entire shortfall in revenues

  2  within 1 year after the rate adjustment and by an amount

  3  necessary to generate the expected amount of revenue on an

  4  ongoing basis. The adjustment may be made by emergency

  5  ordinance and may be made notwithstanding the maximum rate

  6  established under subsection (2) and notwithstanding any

  7  schedules or timeframes or any other limitations contained in

  8  this chapter. The emergency ordinance shall specify an

  9  effective date for the adjusted rate, which shall be no less

10  than 90 days after the date of adoption of the ordinance. At

11  the end of that year, the local governing authority shall, as

12  soon as is consistent with s. 202.21, reduce the rate by that

13  portion of the emergency rate which was necessary to recoup

14  the amount of revenues not received prior to the

15  implementation of the emergency rate.

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

17  Estimating Conference shall compute, in accordance with this

18  paragraph, the maximum rates at which local taxing

19  jurisdictions shall be permitted to impose local

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

21         1.  A single maximum rate shall apply to all

22  municipalities and charter counties and another single maximum

23  rate shall apply to all other counties.

24         2.  Each respective maximum rate, when applied to the

25  services taxed pursuant to this chapter, shall be calculated

26  to produce the revenues which could have been generated from

27  the replaced revenue sources, assuming that all local taxing

28  jurisdictions had imposed every replaced revenue source in the

29  manner and at the rate that would have produced the greatest

30  amount of revenues.

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                                   CS/HB 2415, First Engrossed/ntc



  1         (b)  The rates computed by the Revenue Estimating

  2  Conference shall be presented to the Legislature for review

  3  and approval during the 2001 Regular Session. The rates

  4  approved by the Legislature pursuant to this subsection shall

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

  6         (3)(a)  Each person who provides communications

  7  services shall include as part of the August 2000 return due

  8  pursuant to chapter 212 on or before September 20, 2000, the

  9  information set forth in this paragraph, in a format

10  prescribed by the department. Returns shall contain data for

11  calendar year 1999 that may include, but are not limited to,

12  remittances of replaced revenue sources for each local taxing

13  jurisdiction and an estimate of the revenue from

14  communications services that will be taxable pursuant to this

15  chapter for each local taxing jurisdiction. Such data may also

16  include, on an aggregated statewide basis, each person's

17  statewide sales taxable under chapter 203, taxable sales under

18  s. 212.05(1)(e), and estimates for sales exempt under s.

19  212.08(7)(j) and exempt sales to governmental and other exempt

20  entities under chapter 212.

21         (b)  All information furnished to the department under

22  this subsection shall be available to all local taxing

23  jurisdictions. Such taxpayer information shall remain subject

24  to s. 213.053. Such data may not be disclosed or used by local

25  taxing jurisdictions for any purpose other than to review the

26  validity of data and the calculations made pursuant to this

27  subsection.

28         (c)  For each replaced revenue source, each county and

29  each municipality shall provide the following data to the

30  Department of Revenue on or before September 30, 2000:

31         1.  The rate of the levy for calendar year 1999.


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                                   CS/HB 2415, First Engrossed/ntc



  1         2.  The amount of revenues received during fiscal year

  2  1998-1999 and, if known, the 1999 calendar year.

  3         3.  A description of the revenue base or taxable

  4  services.

  5         4.  The name and federal employer identification number

  6  of each taxpayer.

  7         5.  For the purpose of assisting the Revenue Estimating

  8  Conference in the computations required by this section, any

  9  other relevant information, including, but not limited to,

10  changes in the rate of replaced revenues or imposition of

11  additional replaced revenues subsequent to September 30, 1999.

12         (d)  The department shall provide technical assistance

13  to the Revenue Estimating Conference and compile and analyze

14  the information submitted pursuant to this subsection in the

15  manner requested by the Revenue Estimating Conference.

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

17  "replaced revenue sources," as used in this section, means the

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

19  extent that the respective local taxing jurisdictions were

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

21         (a)  With respect to municipalities and charter

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

23         1.  The public service tax on telecommunications

24  authorized by s. 166.231(9).

25         2.  Franchise fees on cable service providers as

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

27         3.  The public service tax on prepaid calling

28  arrangements.

29         4.  Franchise fees on dealers of communications

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

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


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                                   CS/HB 2415, First Engrossed/ntc



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

  2  charter counties be treated as having had the same authority

  3  as municipalities to impose franchise fees on recurring local

  4  telecommunication service revenues prior to July 1, 2000.

  5  However, the Legislature recognizes that the authority of

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

  7  treatment provided in this section is not an expression of

  8  legislative intent that charter counties actually do or do not

  9  possess such authority.

10         5.  Actual permit fees relating to placing or

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

12  collected from providers of long distance, cable, and mobile

13  communications services for the fiscal year ending September

14  30, 1999; however, if a municipality or charter county elects

15  the option to charge permit fees pursuant to s.

16  337.401(3)(c)1.a., such fees shall not be included as a

17  replaced revenue source.

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

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

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

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

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

23  shall be multiplied by a factor to determine the applicable

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

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

26  2000. The factor shall be calculated such that any rate

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

28  tax revenues as the corresponding rate levied on

29  telecommunication services under s. 212.055 during the year

30  ending September 30, 1999. The factor shall be calculated to

31  three decimal places, and the tax rates calculated by applying


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                                   CS/HB 2415, First Engrossed/ntc



  1  the factor for purposes of s. 202.19(5) shall be rounded up to

  2  the nearest one-tenth percent. The factor shall be presented

  3  to the Legislature for review and approval during the 2001

  4  Regular Session.

  5         (6)  For purposes of calculating the appropriate value

  6  of the replaced revenue under subparagraph (4)(a)2. and

  7  paragraph (4)(b), and in conjunction with the study required

  8  by this act, the Revenue Estimating Conference may include in

  9  its computation any adjustment necessary to include the value

10  of any in-kind requirements, institutional networks, and

11  contributions for, or in support of, the use or construction

12  of public, educational, or governmental access facilities

13  allowed under federal law.

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

15  only with respect to the initial tax rate of a local taxing

16  jurisdiction which on January 1, 2002, is entitled to receive

17  from any dealer of communications services fees in excess of

18  the applicable limitation set forth in s. 337.401, as such

19  section existed prior to the effective date of this section,

20  pursuant to an agreement with such dealer of communications

21  services in effect on such date.

22         (b)  Immediately upon the expiration of an agreement

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

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

25  jurisdiction, shall automatically be reduced by the portion of

26  such rate representing the difference between the fees

27  actually received by the taxing jurisdiction pursuant to the

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

29  ending September 30, 1999, and the fees that such jurisdiction

30  would have received for such period under the applicable

31


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                                   CS/HB 2415, First Engrossed/ntc



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

  2  prior to the effective date of this section.

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

  4  Florida Statutes, is created to read:

  5         202.21  Effective dates; procedures for informing

  6  dealers of communications services of tax levies and rate

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

  8  local communications services tax imposed under s. 202.19 is

  9  effective with respect to taxable services included on bills

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

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

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

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

14  September 1 immediately preceding such January 1. Notification

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

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

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

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

19  municipality or county to respond to inquiries concerning the

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

21  repeal, or change to all affected dealers of communications

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

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

24  communications services tax by emergency ordinance pursuant to

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

26  rate immediately upon its adoption. The department shall

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

28  affected dealers within 30 days after receiving such notice.

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

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

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


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                                   CS/HB 2415, First Engrossed/ntc



  1  tax rates levied within such jurisdiction pursuant to s.

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

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

  4  202.19(2)(b) and (5). The department is not liable for any

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

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

  7  a tax imposed under s. 202.19.

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

  9  Florida Statutes, is created to read:

10         202.22  Determination of local tax situs.--

11         (1)  A dealer of communications services who is

12  obligated to collect and remit a local communications services

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

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

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

16  service address to an incorrect local taxing jurisdiction, if

17  the dealer of communications services exercises due diligence

18  in applying one or more of the following methods for

19  determining the local taxing jurisdiction in which a service

20  address is located:

21         (a)  Employing an electronic database provided by the

22  department under subsection (2).

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

24  supplied by a vendor which has been certified by the

25  department under subsection (3).

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

27  address, address range, post office box, or post office box

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

29  jurisdiction. If an enhanced zip code overlaps boundaries of

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

31  be assigned to the service address because the service address


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                                   CS/HB 2415, First Engrossed/ntc



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

  2  dealer of communications services or its database vendor shall

  3  assign the affected service addresses to one specific local

  4  taxing jurisdiction within such zip code based on a reasonable

  5  methodology. A methodology satisfies this paragraph if the

  6  information used to assign service addresses is obtained by

  7  the dealer or its database vendor from:

  8         1.  A database provided by the department;

  9         2.  A database certified by the department under

10  subsection (3);

11         3.  Responsible representatives of the relevant local

12  taxing jurisdictions; or

13         4.  The United States Census Bureau or the United

14  States Postal Service.

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

16  assignments that does not meet the requirements of paragraphs

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

18  at the time of audit by the department.

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

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

21  thereafter maintain, an electronic database that gives due and

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

23  National Standards Institute's Accredited Standards Committee

24  X12 and that designates for each street address, address

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

26  including any multiple postal street addresses applicable to

27  one street location, the local taxing jurisdiction in which

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

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

30  such local taxing jurisdiction, identified by one nationwide

31  standard numeric code. The nationwide standard numeric code


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                                   CS/HB 2415, First Engrossed/ntc



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

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

  3  of taxing jurisdiction throughout the United States using a

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

  5  approved by the Federation of Tax Administrators and the

  6  Multistate Tax Commission. Each address or address range or

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

  8  standard postal format, including the street number, street

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

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

11  of the availability of the database, and any subsequent

12  revision thereof, by publication in the Florida Administrative

13  Weekly.

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

15  the department all information needed to create and update the

16  electronic database, including changes in service addresses,

17  annexations, incorporations, reorganizations, and any other

18  changes in jurisdictional boundaries. The information

19  furnished to the department must specify an effective date,

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

21  information must be furnished to the department at least 120

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

23  that counties submit information pursuant to this paragraph

24  shall be subject to appropriation.

25         2.  The department shall update the electronic database

26  in accordance with the information furnished by local taxing

27  jurisdictions under subparagraph 1. Each update must specify

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

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

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

31  furnish the update on magnetic or electronic media to any


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                                   CS/HB 2415, First Engrossed/ntc



  1  dealer of communications services or vendor who requests the

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

  3  fee from the dealer of communications services which does not

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

  5  electronic media.

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

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

  8  Each dealer of communications services shall collect and remit

  9  local communications services taxes imposed under this chapter

10  only for those service addresses that are contained in the

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

12  subsection are included in the database.

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

14  certified by the department pursuant to rules that implement

15  the following criteria and procedures:

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

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

18  proper jurisdiction with an overall accuracy rate of 95

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

20  through a statistically reliable sample. The accuracy must be

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

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

23  dealer's entire service area.

24         (b)  Upon receipt of an application for certification

25  or recertification of a database, the department shall examine

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

27  applicant of any apparent errors or omissions and request any

28  additional information, conduct any inspection, or perform any

29  testing determined necessary. The applicant shall designate an

30  individual responsible for providing access to all records,

31  facilities, and processes the department determines are


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                                   CS/HB 2415, First Engrossed/ntc



  1  reasonably necessary to review and make a determination

  2  regarding the application. Such access must be provided within

  3  10 working days after notification.

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

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

  6  identification number, mailing address, business address, and

  7  any other information required by the department. The

  8  application must identify, among other elements required by

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

10  database.

11         (d)  Each application for certification must be

12  approved or denied upon written notice within 180 days after

13  receipt of a completed application. The notice must specify

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

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

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

17  preclude the department from certifying the database upon a

18  demonstration that the deficiencies have been corrected.

19         (e)  Certification or recertification of a database

20  under this subsection is effective from the date of the

21  department's notice approving the application until the

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

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

24         (f)  An application for recertification of a database

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

26  the date of any prior certification. The application and

27  procedures relating thereto shall be governed by this

28  subsection, except as otherwise provided in this paragraph.

29  When an application for recertification has been timely

30  submitted, the existing certification shall not expire but

31  shall remain effective until the application has received


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                                   CS/HB 2415, First Engrossed/ntc



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

  2  denied, until the denial is no longer subject to

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

  4  fixed by order of the reviewing court.

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

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

  7  exercised by, a reasonable and prudent person under the

  8  circumstances.

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

10  of communications services is exercising due diligence in

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

12  (1) if the dealer:

13         1.  Expends reasonable resources to accurately and

14  reliably implement such method. However, the employment of

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

16  requirements of this subparagraph; and

17         2.  Maintains adequate internal controls in assigning

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

19  office box ranges to taxing jurisdictions. Internal controls

20  are adequate if the dealer of communications services:

21         a.  Maintains and follows procedures to obtain and

22  implement periodic and consistent updates to the database; and

23         b.  Corrects errors in the assignments of service

24  addresses to local taxing jurisdictions within 120 days after

25  the dealer discovers such errors.

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

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

28  determining the local taxing jurisdiction in which a service

29  address is located, the dealer of communications services may

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

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


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                                   CS/HB 2415, First Engrossed/ntc



  1  the service address to an incorrect local taxing jurisdiction.

  2  However, the dealer of communications services is not liable

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

  4  amount was collected and remitted by the dealer of

  5  communications services with respect to a tax imposed by

  6  another local taxing jurisdiction. Upon determining that an

  7  amount was collected and remitted by a dealer of

  8  communications services with respect to a tax imposed by

  9  another local taxing jurisdiction, the department shall adjust

10  the respective amounts of the proceeds paid to each such

11  taxing jurisdiction under s. 202.18 in the month immediately

12  following such determination.

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

14  each dealer of communications services must notify the

15  department of the methods it intends to employ for determining

16  the local taxing jurisdiction in which service addresses are

17  located.

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

19  communications services employs a method of assigning service

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

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

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

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

24  department.

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

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

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

28  Florida Statutes, is created to read:

29         202.23  Procedure on purchaser's request for refund or

30  credit of communications services taxes.--

31


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                                   CS/HB 2415, First Engrossed/ntc



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

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

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

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

  5  refund or credit to the dealer in accordance with this

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

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

  8  the state or to any local taxing jurisdiction.

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

10  under this section if:

11         1.  The dealer charged and collected the tax with

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

13  communications services taxes imposed by this chapter or

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

15  rate.

16         2.  The purchaser or the transaction was exempt or

17  immune from such taxes.

18         3.  The purchaser was assigned to the incorrect local

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

20  202.19.

21         4.  The purchaser paid the tax in error.

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

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

24  this section and the limitation period if it states the

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

26  amounts claimed, the specific months during which those

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

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

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

30  exemption or immunity or a claim that the purchaser was

31  assigned to the incorrect local taxing jurisdiction for


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                                   CS/HB 2415, First Engrossed/ntc



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

  2  must also include any additional information the department

  3  prescribes by rule to facilitate verification of the

  4  purchaser's eligibility for exemption or immunity or to

  5  facilitate verification of the purchaser's service address.

  6  Upon receipt of a completed request, the dealer shall

  7  ascertain whether it collected the tax claimed from the

  8  purchaser and whether the request is timely.

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

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

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

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

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

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

15  account for such amount within 45 days following such

16  determination.

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

18  the dealer collected from the purchaser and which the dealer

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

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

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

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

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

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

25  furnish to the department an identification of the charges

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

27  the charges, or a written identification of each local

28  jurisdiction to which the purchaser was assigned and the

29  amounts collected from the purchaser and reported for each

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

31  request submitted to the department under this section sets


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                                   CS/HB 2415, First Engrossed/ntc



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

  2  dealer shall furnish to the department information to

  3  facilitate the department's evaluation of the request.

  4         (e)  Within 90 days following receipt of the

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

  6  determine whether the tax was correctly applied and notify the

  7  dealer in writing of its determination. If the department

  8  determines that the tax was incorrectly applied, its

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

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

11  incorrect assignment of the purchaser to a local taxing

12  jurisdiction, an identification of the correct local taxing

13  jurisdiction and the applicable rates of tax levied by the

14  local jurisdiction. The department's notification must also

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

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

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

18  purchaser. Within 45 days following receipt of notification

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

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

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

22  is limited to amounts approved in accordance with this

23  section.

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

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

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

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

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

29  request may be denied if the request was untimely or

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

31  purchaser previously received a refund of or credit for the


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                                   CS/HB 2415, First Engrossed/ntc



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

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

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

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

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

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

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

  8  request was not submitted to the department pursuant to

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

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

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

12  within 135 days following submission of the request to the

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

14  notification.

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

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

17  dealer which is delinquent.

18         (2)  This section provides the sole and exclusive

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

20  has collected communications services taxes imposed or

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

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

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

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

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

26  that the purchaser has exhausted the procedures in subsection

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

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

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

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

31  imposed on the dealer by paragraphs (1)(d), (e), and (f). In


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                                   CS/HB 2415, First Engrossed/ntc



  1  any such action, it is a complete defense that the dealer, a

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

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

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

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

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

  7  taxing jurisdiction. Such action is barred unless it is

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

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

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

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

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

13  communications services taxes that were not due is limited to

14  a refund of or credit for such taxes.

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

16  department for which the dealer subsequently issued a refund

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

18  dealer who has otherwise remitted to the department a tax

19  amount with respect to communications services which was not

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

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

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

23  or may take a credit against a tax remittance otherwise

24  required under this chapter within 3 years after the date that

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

26  department, or within 60 days following such provider's

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

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

29  to the offset of overpayments against deficiencies in audits

30  of dealers and purchasers.

31


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                                   CS/HB 2415, First Engrossed/ntc



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

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

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

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

  5  return applicable to the local taxing jurisdiction for which

  6  the tax was originally reported.

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

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

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

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

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

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

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

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

15  his or her tax compliance practices to conform to a department

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

17  assessment as a result of such modification, absent a

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

19  s. 202.22.

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

21  services taxes that the purchaser paid directly to the

22  department must apply to the department for such refund in

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

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

25  section for purchasers and dealers may be assigned.

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

27  Florida Statutes, is created to read:

28         202.24  Limitations on local taxes and fees imposed on

29  dealers of communications services.--

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

31  fees, charges, or other impositions from dealers of


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  1  communications services for occupying its roads and

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

  3  of unique circumstances applicable to communications services

  4  dealers. Communications services may be provided by certain

  5  dealers of communications services in a manner that requires

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

  7  communications services may be provided by other dealers of

  8  communications services in a manner that does not require the

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

10  communications services may be provided by different means,

11  the state seeks to treat dealers of communications services in

12  a nondiscriminatory and competitively neutral manner.

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

14  public body is prohibited from:

15         1.  Levying on or collecting from dealers or purchasers

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

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

18  communications services.

19         2.  Requiring any dealer of communications services to

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

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

22  other imposition.

23         3.  Adopting or enforcing any provision of any

24  ordinance or agreement to the extent that such provision

25  obligates a dealer of communications services to charge,

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

27  other imposition.

28

29  Each municipality and county retains authority to negotiate

30  all terms and conditions of a cable service franchise allowed

31  by federal and state law except those terms and conditions


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                                   CS/HB 2415, First Engrossed/ntc



  1  related to franchise fees and the definition of gross revenues

  2  or other definitions or methodologies related to the payment

  3  or assessment of franchise fees on providers of cable

  4  services.

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

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

  7  payment of property or services which is required by ordinance

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

  9  through a dealer of communications services in its capacity as

10  a dealer of communications services, regardless of whether

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

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

13  charge, franchise fee, user fee, privilege fee, occupancy fee,

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

15  fee, or other tax or fee;

16         2.  Measured by the amounts charged or received for

17  services, regardless of whether such amount is permitted or

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

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

20  other means; or

21         3.  Intended as compensation for the use of public

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

23  for other purposes.

24         (c)  This subsection does not apply to:

25         1.  Local communications services taxes levied under

26  this chapter.

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

28         3.  Occupational license taxes levied under chapter

29  205.

30         4.  "911" service charges levied under chapter 365.

31


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                                   CS/HB 2415, First Engrossed/ntc



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

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

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

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

  5  attachment of equipment used in the provision of

  6  communications services.

  7         6.  Permit fees of general applicability which are not

  8  related to placing or maintaining facilities in or on public

  9  roads or rights-of-way.

10         7.  Permit fees related to placing or maintaining

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

12  s. 337.401.

13         8.  Any in-kind requirements, institutional networks,

14  or contributions for, or in support of, the use or

15  construction of public, educational, or governmental access

16  facilities allowed under federal law and imposed on providers

17  of cable service pursuant to any ordinance or agreement.

18  Nothing in this subparagraph shall prohibit the ability of

19  providers of cable service to recover such expenses as allowed

20  under federal law.  This subparagraph shall be reviewed by the

21  Legislature during the 2001 legislative session in conjunction

22  with the study required by this act.

23         9.  Special assessments and impact fees.

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

25  government for attachments to utility poles owned by the local

26  government.

27         11.  Utility service fees or other similar user fees

28  for utility services.

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

30  or imposition authorized by general law on July 1, 2000, which

31


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                                   CS/HB 2415, First Engrossed/ntc



  1  is not specifically prohibited by this subsection or included

  2  as a replaced revenue source in s. 202.20.

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

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

  5  limitation, every division, agency, and instrumentality

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

  7  branch of state government.

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

  9  Florida Statutes, is created to read:

10         202.25  Jurisdiction; dealers not qualified to do

11  business in this state.--

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

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

14  collecting any tax due from the dealer, including garnishment

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

16  circuit court of this state having jurisdiction of the subject

17  matter.

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

19  this state shall designate with the department an agent within

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

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

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

23  constitutes the agent for the service of such process.

24         Section 18.  Section 202.26, Florida Statutes, is

25  created to read:

26         202.26  Department powers.--

27         (1)  The department shall administer and enforce the

28  assessment and collection of the taxes, interest, and

29  penalties collected under or imposed by this chapter.

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

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


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  1  administered under this chapter and to the collection thereof

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

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

  4  this chapter.

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

  6  department may adopt rules relating to:

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

  8  including provisions concerning electronic funds transfer and

  9  electronic data interchange.

10         (b)  The determination of customer service addresses.

11         (c)  The interpretation or definition of any exemptions

12  or exclusions from taxation granted by law.

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

14  determining the taxable status of discounts and rebates.

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

16  taxpayers.

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

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

19  202.22(4)(b).

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

21  202.22(2) and the certification and recertification of the

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

23         (h)  The registration of dealers.

24         (i)  The information that is necessary and the methods,

25  forms, and deadlines for providing the information collected

26  pursuant to s. 202.20(3).

27         (j)  The review of applications for, and the issuance

28  of, direct-pay permits, and the returns required to be filed

29  by holders thereof.

30         (4)  The executive director of the department is

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


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

  2  implement this chapter. Notwithstanding any other provision of

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

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

  5  pendency of procedures to adopt rules addressing the subject

  6  of the emergency rules.

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

  8  Florida Statutes, is created to read:

  9         202.27  Return filing; rules for self-accrual.--

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

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

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

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

14  prepared and furnished by the department or in a format

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

16  information to be furnished by taxpayers on such returns.

17         (2)  The department may require:

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

19  remitted by the dealer for the preceding four calendar

20  quarters did not exceed $1,000.

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

22  remitted by the dealer for the preceding four calendar

23  quarters did not exceed $500.

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

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

26  exceed $100.

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

28  tax remitted by the dealer for the preceding four calendar

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

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

31  required to be initiated through an electronic data


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

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

  3  federal or state legal holiday, returns are timely if

  4  postmarked on the next succeeding workday. Any dealer who

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

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

  7  maintains records for such locations in a central office or

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

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

10  location; however, the return must clearly indicate the

11  amounts collected within each location. Each dealer shall file

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

13  such period.

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

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

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

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

18  of making the return shall cause the taxes to become

19  delinquent. All taxes and all interest and penalties imposed

20  or administered under this chapter must be remitted to the

21  department at Tallahassee or at another office designated by

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

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

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

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

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

27  department requires in order to ascertain the amount of taxes

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

29  return that is not accompanied by payment is prima facie

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

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


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                                   CS/HB 2415, First Engrossed/ntc



  1  members of any firm or incorporated society or organization,

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

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

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

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

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

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

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

  9  775.082 or s. 775.083. The signing of a written return has the

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

11  of appending an oath thereto.

12         (6)  The department may provide by rule for

13  self-accrual of the communications services tax when:

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

15  permits; or

16         (b)  The taxable status of sales of communications

17  services will be known only upon use.

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

19  Florida Statutes, is created to read:

20         202.28  Credit for collecting tax; penalties.--

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

22  purpose of compensating persons providing communications

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

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

25  taxes, persons collecting taxes imposed under this chapter

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

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

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

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

30  tax is delinquent at the time of payment.

31


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                                   CS/HB 2415, First Engrossed/ntc



  1         (b)  The department may deny the collection allowance

  2  if a taxpayer files an incomplete return.

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

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

  5  arrangement that the physical handling, verification, review

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

  7  reported on the return can not be readily accomplished.

  8         2.  The department shall adopt rules requiring the

  9  information that it considers necessary to ensure that the

10  taxes levied or administered under this chapter are properly

11  collected, reviewed, compiled, reported, and enforced,

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

13  of the amount of gross sales; the amount of taxable sales; the

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

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

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

17  interest; and the amount due with the return.

18         (c)  The collection allowance and other credits or

19  deductions provided in this chapter shall be applied to the

20  taxes reported for the jurisdiction previously credited with

21  the tax paid.

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

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

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

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

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

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

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

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

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

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


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                                   CS/HB 2415, First Engrossed/ntc



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

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

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

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

  5  775.083.

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

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

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

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

10  percent of the tax bill or fee, and:

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

12  less than $300:

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

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

15  775.082 or s. 775.083.

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

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

18  775.082 or s. 775.083.

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

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

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

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

23  $300 or more but less than $20,000, such person commits a

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

25  775.082, s. 775.083, or s. 775.084.

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

27  $20,000 or more but less than $100,000, such person commits a

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

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

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

31  $100,000 or more, such person commits a felony of the first


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                                   CS/HB 2415, First Engrossed/ntc



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

  2  s. 775.084.

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

  4  Florida Statutes, is created to read:

  5         202.29  Bad debts.--

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

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

  8  the dealer on unpaid balances due on worthless accounts within

  9  12 months following the last day of the calendar year for

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

11  income tax return.

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

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

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

15  after such receipt and the tax paid accordingly.

16         (3)  Bad debts associated with accounts receivable

17  which have been assigned or sold with recourse are eligible

18  upon reassignment for inclusion by the dealer in the credit or

19  refund authorized by this section.

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

21  Florida Statutes, is created to read:

22         202.30  Payment of taxes by electronic funds transfer;

23  filing of returns by electronic data interchange.--

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

25  remit taxes by electronic funds transfer, in the manner

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

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

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

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

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

31  is initiated through an electronic data interchange. The


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                                   CS/HB 2415, First Engrossed/ntc



  1  department shall prescribe the acceptable method of transfer;

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

  3  interchange, giving due regard to developing uniform standards

  4  for formats as adopted by the American National Standards

  5  Institute; the circumstances under which an electronic data

  6  interchange will serve as a substitute for the filing of

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

  8  taxpayers will be provided with acknowledgments. The

  9  department must accept such returns as timely if initiated and

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

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

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

13  next succeeding workday.

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

15  return through an electronic data interchange when problems

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

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

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

19  problems exist.

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

21  and furnish to all dealers, except dealers filing through

22  electronic data interchange, or make available or prescribe to

23  the dealers all necessary forms for filing returns and

24  instructions to ensure a full collection from dealers and an

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

26  secure such forms does not relieve the dealer of the

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

28  required.

29         (b)  The department shall prescribe the format and

30  instructions necessary for filing returns in a manner that is

31  initiated through an electronic data interchange to ensure a


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                                   CS/HB 2415, First Engrossed/ntc



  1  full collection from dealers and an accounting for the taxes

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

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

  4  time and in the manner required.

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

  6  Florida Statutes, is created to read:

  7         202.31  Sale of business; liability for tax;

  8  procedures; penalty for violations.--

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

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

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

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

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

14  shall withhold a sufficient portion of the purchase money to

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

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

17  the department showing that they have been paid or a

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

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

20  substantially all of the assets of a business fails to

21  withhold a sufficient amount of the purchase money as required

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

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

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

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

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

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

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

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

30  liability under this section, the seller or purchaser may

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


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                                   CS/HB 2415, First Engrossed/ntc



  1  department may contract with private auditors pursuant to s.

  2  213.28 to perform the audit. The department may charge the

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

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

  5  or penalty quits the business without the benefit of a

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

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

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

  9  prohibited from engaging in any business in this state until

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

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

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

13  the performance of further business activity until such tax is

14  paid. A temporary injunction enjoining further business

15  activity may be granted by a court without notice.

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

17  taxes imposed or administered by this chapter, the department

18  may give notice of the amount of such delinquency by

19  registered mail to all persons having in their possession or

20  under their control any credits or other personal property

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

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

23  notified shall within 5 days after receipt of the notice

24  advise the department of all such credits, other personal

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

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

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

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

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

30  until the department consents to a transfer or disposition or

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


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                                   CS/HB 2415, First Engrossed/ntc



  1  whichever occurs first, except that the credits, other

  2  personal property, or debts that exceed the delinquent amount

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

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

  5  prior history of tax delinquencies under this chapter. All

  6  persons notified must, within 5 days, advise the department of

  7  any credits or other personal property belonging to such

  8  dealer or any debts incurred and owing to such dealer which

  9  subsequently come into their possession or under their control

10  during the time prescribed by the notice or until the

11  department consents to a transfer or disposition, whichever

12  occurs first. If the notice seeks to prevent the transfer or

13  other disposition of a deposit in a bank or other credits or

14  personal property in the possession or under the control of a

15  bank, the notice is ineffective unless it is delivered or

16  mailed to the office of the bank at which the deposit is

17  carried or at which the credits or personal property are held.

18  If, during the effective period of the notice to withhold, any

19  person so notified makes any transfer or disposition of the

20  property or debts required to be withheld, he or she is liable

21  to the state for any indebtedness due under this chapter from

22  the person with respect to whose obligation the notice was

23  given to the extent of the value of the property or the amount

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

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

26  the indebtedness of the person with respect to whose

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

28  personal property or debts are subject to garnishment by the

29  department for satisfaction of the delinquent taxes due.

30

31


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

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

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

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

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

  6  775.083.

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

  8  Florida Statutes, is created to read:

  9         202.32  State and local agencies to cooperate in

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

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

12  information that the department considers necessary in

13  administering this chapter, and such agency shall furnish such

14  information.

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

16  Florida Statutes, is created to read:

17         202.33  Taxes declared to be government funds;

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

19         (1)  The taxes collected under this chapter become

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

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

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

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

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

25  punishable as follows:

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

27  $300, the offense is a misdemeanor of the second degree,

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

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

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

31  775.083. For a third or subsequent offense, the offender is


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

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

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

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

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

  6  775.083, or s. 775.084.

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

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

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

10  775.083, or s. 775.084.

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

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

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

14  775.084.

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

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

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

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

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

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

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

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

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

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

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

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

27  department may issue a tax execution to enforce the collection

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

29  sheriff. The sheriff shall thereupon proceed in the same

30  manner as prescribed by law for executions and shall be

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


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

  2  writ of garnishment with respect to any indebtedness due to

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

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

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

  6  the execution, warrant, judgment, or garnishment, the

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

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

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

10  manner specified for jeopardy assessments in s. 213.732.

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

12  Florida Statutes, is created to read:

13         202.34  Records required to be kept; power to inspect;

14  audit procedure.--

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

16  long as required by s. 213.35 a complete record of

17  communications services sold at retail by the dealer, together

18  with invoices, records of gross receipts from such sales, and

19  other pertinent records and papers required by the department

20  for the reasonable administration of this chapter. All such

21  records that are located or maintained in this state must be

22  made available for inspection by the department at all

23  reasonable hours at the dealer's office or other place of

24  business located in this state. Any dealer who maintains such

25  books and records outside this state must make such books and

26  records available for inspection by the department wherever

27  the dealer's general records are kept. Any dealer subject to

28  the provisions of this chapter who violates this subsection is

29  guilty of a misdemeanor of the first degree, punishable as

30  provided in s. 775.082 or s. 775.083. If, however, any

31  subsequent offense involves intentional destruction of such


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  1  records with an intent to evade payment of or deprive the

  2  government of any tax revenues, such subsequent offense

  3  constitutes a felony of the third degree, punishable as

  4  provided in s. 775.082 or s. 775.083.

  5         (b)  For the purpose of this subsection, if a dealer

  6  does not have adequate records of its sales of communications

  7  services, the department may, upon the basis of a test or

  8  sampling of the dealer's available records or other

  9  information relating to the sales made by such dealer for a

10  representative period, determine the proper basis for

11  assessing tax. This subsection does not affect the duty of the

12  dealer to collect, or the liability of any consumer to pay,

13  any tax imposed or administered under this chapter.

14         (c)  If the records of a dealer are adequate but

15  voluminous, the department may reasonably sample such records

16  and project the audit findings derived therefrom over the

17  entire audit period to determine the proper basis for

18  assessing tax. In order to conduct such a sample, the

19  department must first make a good faith effort to reach an

20  agreement with the dealer which provides for the means and

21  methods to be used in the sampling process. If an agreement is

22  not reached, the dealer is entitled to a review by the

23  executive director or the executive director's designee of the

24  sampling method to be used by the auditor.

25         (2)  For the purpose of enforcement of this chapter,

26  each dealer shall allow the department to examine its books

27  and records at all reasonable hours; and, if the dealer

28  refuses, the department may petition the circuit court to

29  order the dealer to permit such examination, subject to the

30  right of removal of the cause to the judicial circuit wherein

31


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  1  such person's business is located or wherein such person's

  2  books and records are kept.

  3         (3)  Each person who sells or purchases communications

  4  services shall permit the department to examine his or her

  5  books and records at all reasonable hours. The person shall

  6  also maintain books and records as long as required by s.

  7  213.35 in order to disclose the sales and purchases of all

  8  services sold, to whom sold, and the amount sold, in the form

  9  and manner that the department requires, so that the

10  department can determine the volume of services sold or

11  purchased, as defined by this chapter, and the dates and

12  amounts of such sales and purchases. The department may

13  petition the circuit court to require any person who refuses

14  to keep such records to permit such inspection, subject to the

15  right of removal of the cause to the judicial circuit wherein

16  such person's business is located or wherein such person's

17  books and records are kept.

18         (4)(a)  The department shall send written notification,

19  at least 60 days prior to the date an auditor is scheduled to

20  begin an audit, informing the person of the audit. The

21  department is not required to give 60 days' prior notification

22  of a forthcoming audit whenever the person requests an

23  emergency audit.

24         (b)  The written notification must specify:

25         1.  The approximate date on which the auditor is

26  scheduled to begin the audit.

27         2.  A reminder that all of the records, receipts,

28  invoices, resale certificates, and related documentation of

29  the person must be made available to the auditor.

30         3.  Any other requests or suggestions that the

31  department considers necessary.


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  1         (c)  Only records, receipts, invoices, resale

  2  certificates, and related documentation that are available to

  3  the auditor when the audit begins are acceptable for the

  4  purposes of the audit. A resale certificate containing a date

  5  prior to the date the audit commences constitutes acceptable

  6  documentation of the specific transactions that occurred in

  7  the past.

  8         (d)  The provisions of this chapter concerning

  9  fraudulent or improper records, receipts, invoices, resale

10  certificates, and related documentation apply with respect to

11  any audit.

12         (e)  The requirement in paragraph (a) of 60 days'

13  written notification does not apply in cases of distress or

14  jeopardy as provided in s. 202.33 or s. 202.36.

15         Section 27.  Effective January 1, 2002, section 202.35,

16  Florida Statutes, is created to read:

17         202.35  Powers of department in dealing with

18  delinquents; tax to be separately stated.--

19         (1)  If any dealer or other person fails to remit the

20  tax, or any portion thereof, on or before the day when the tax

21  is required by law to be paid, there will be added to the

22  amount due interest at the rate calculated pursuant to s.

23  213.235 of the amount due from the date due until paid.

24  Interest on the delinquent tax is to be calculated beginning

25  on the 21st day of the month following the month for which the

26  tax is due, except as otherwise provided in this chapter.

27         (2)  All penalties and interest imposed by this chapter

28  are payable to and collectible by the department in the same

29  manner as if they were a part of the tax collected under this

30  chapter. The department may settle or compromise any such

31  interest or penalties pursuant to s. 213.21.


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  1         (3)  If a dealer or other person fails or refuses to

  2  make his or her records available for inspection so that an

  3  audit or examination of his or her books and records cannot be

  4  made, fails or refuses to register as a dealer, fails to make

  5  a report and pay the tax as provided by this chapter, makes a

  6  grossly incorrect report, or makes a report that is false or

  7  fraudulent, the department shall make an assessment from an

  8  estimate based upon the best information then available to it

  9  for the taxable period of retail sales of the dealer, together

10  with any accrued interest and penalties. The department shall

11  then proceed to collect the taxes, interest, and penalties on

12  the basis of such assessment, which shall be considered prima

13  facie correct; and the burden to show the contrary rests upon

14  the dealer or other person.

15         (4)  Each dealer who makes retail sales of

16  communications services shall add the amount of the taxes

17  imposed or administered under this chapter to the price of the

18  services sold by him or her and shall state the taxes

19  separately from the price of the services on all invoices. The

20  combined amount of taxes due under ss. 202.12 and 203.01 shall

21  be stated and identified as the Florida communications

22  services tax, and the combined amount of taxes due under s.

23  202.19 shall be stated and identified as the local

24  communications services tax.

25         (5)  A dealer may not advertise or hold out to the

26  public, in any manner, directly or indirectly, that he or she

27  will absorb all or any part of the tax; that he or she will

28  relieve the purchaser of the payment of all or any part of the

29  tax; that the tax will not be added to the selling price of

30  the property or services sold or released; or, when added,

31  that it or any part thereof will be refunded either directly


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  1  or indirectly by any method. A person who violates this

  2  subsection with respect to advertising or refund is guilty of

  3  a misdemeanor of the second degree, punishable as provided in

  4  s. 775.082 or s. 775.083. A second or subsequent offense

  5  constitutes a misdemeanor of the first degree, punishable as

  6  provided in s. 775.082 or s. 775.083.

  7         (6)  Whenever in the construction, administration, or

  8  enforcement of this chapter there is any question respecting a

  9  duplication of the tax, the sale to the end consumer or last

10  retail sale is the sale to be taxed, and, insofar as is

11  practicable, there is to be no duplication or pyramiding of

12  the tax.

13         Section 28.  Effective January 1, 2002, section 202.36,

14  Florida Statutes, is created to read:

15         202.36  Departmental powers; hearings; distress

16  warrants; bonds; subpoenas and subpoenas duces tecum.--

17         (1)  Any person required to pay a tax imposed or

18  administered under this chapter or to make a return who

19  renders a return or makes a payment of a tax with intent to

20  deceive or defraud the government and prevent the government

21  from collecting the amount of taxes imposed or administered by

22  this chapter, or who otherwise fails to comply with this

23  chapter for the taxable period for which any return is made,

24  any tax is paid, or any report is made to the department, may

25  be required by the department to show cause at a time and

26  place to be set by the department, after 10 days' notice in

27  writing requiring the production of such books, records, or

28  papers relating to the business of such person for such tax

29  period as the department requires. The department may require

30  such person or his or her employees to give testimony under

31  oath and answer interrogatories respecting the sale of


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  1  communications services within this state, the failure to make

  2  a true report thereof, or failure to pay the true amount of

  3  the tax required to be paid under this chapter. If such person

  4  fails to produce such books, records, or papers or to appear

  5  and answer questions within the scope of investigation

  6  relating to matters concerning taxes to be imposed or

  7  administered under this chapter, or fails to allow his or her

  8  agents or employees to give testimony, the department may

  9  estimate any unpaid deficiencies in taxes to be assessed

10  against such person based on whatever information is available

11  to it and may issue a distress warrant for the collection of

12  such taxes, interest, or penalties estimated by the department

13  to be due and payable; and such assessment shall be deemed

14  prima facie correct. In such cases, the warrant shall be

15  issued to the sheriff of any county in the state where such

16  person owns or possesses any property; and the sheriff shall

17  seize such property as is required to satisfy any such taxes,

18  interest, or penalties and sell such property under the

19  distress warrant in the same manner as property is permitted

20  to be seized and sold under distress warrants issued to secure

21  the payment of delinquent taxes. The department shall also

22  have the right to writ of garnishment to subject any

23  indebtedness due to the delinquent dealer by a third person in

24  any goods, money, chattels, or effects of the delinquent

25  dealer in the hands, possession, or control of the third

26  person in the manner provided by law. The person whose tax

27  return or report is being investigated may by written request

28  to the department require that the hearing be set at a place

29  within the judicial circuit wherein the person's business is

30  located or wherein such person's books and records are kept.

31  If there is jeopardy to the revenue and jeopardy is asserted


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

  2  manner specified for jeopardy assessment in s. 213.732.

  3         (2)  Whenever it is necessary to ensure compliance with

  4  this chapter, the department shall require a cash deposit,

  5  bond, or other security as a condition to a person's obtaining

  6  or retaining a dealer's certificate of registration under this

  7  chapter. The bond must be in such form and amount as the

  8  department deems appropriate under the particular

  9  circumstances. Any person who fails to produce such cash

10  deposit, bond, or other security may not obtain or retain a

11  dealer's certificate of registration under this chapter. The

12  Department of Legal Affairs may seek an injunction, when

13  requested by the department, to prevent such person from doing

14  business subject to the provisions of this chapter until the

15  cash deposit, bond, or other security is posted with the

16  department. Any security required to be deposited may be sold

17  by the department at public sale if it becomes necessary to do

18  so in order to recover any tax, interest, or penalty due.

19  Notice of such sale may be served personally or by mail upon

20  the person who deposited the security. Mailing the notice to

21  the last known address appearing on the records of the

22  department constitutes adequate service. Any proceeds of the

23  sale exceeding the amount due under this chapter must be

24  returned to the person who deposited the security.

25         (3)  The department or any person authorized by it in

26  writing is authorized to make and sign assessments, tax

27  warrants, assignments of tax warrants, and satisfaction of tax

28  warrants.

29         (4)(a)  The department may issue subpoenas or subpoenas

30  duces tecum compelling the attendance and testimony of

31  witnesses and the production of books, records, written


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                                   CS/HB 2415, First Engrossed/ntc



  1  materials, and electronically recorded information. Subpoenas

  2  must be issued with the written and signed approval of the

  3  executive director or his or her designee on written and sworn

  4  application by any employee of the department. The application

  5  must set forth the reason for the application, the name of the

  6  person subpoenaed, the time and place of appearance of the

  7  witness, and a description of any books, records, or

  8  electronically recorded information to be produced, together

  9  with a statement by the applicant that the department has

10  unsuccessfully attempted other reasonable means of securing

11  information and that the testimony of the witness or the

12  written or electronically recorded materials sought in the

13  subpoena are necessary for the collection of taxes, penalty,

14  or interest or the enforcement of the taxes levied or

15  administered under this chapter. A subpoena shall be served in

16  the manner provided by law and by the Florida Rules of Civil

17  Procedure and shall be returnable only during regular business

18  hours and at least 20 calendar days after the date of service

19  of the subpoena. Any subpoena to which this subsection applies

20  must identify the taxpayer to whom the subpoena relates and to

21  whom the records pertain and must provide other information to

22  enable the person subpoenaed to locate the records required

23  under the subpoena. The department shall give notice to the

24  taxpayer to whom the subpoena relates within 3 days after the

25  day on which the service of the subpoena is made. Within 14

26  days after service of the subpoena, the person to whom the

27  subpoena is directed may serve written objection to the

28  inspection or copying of any of the designated materials. If

29  objection is made, the department may not inspect or copy the

30  materials, except pursuant to an order of the circuit court.

31  If an objection is made, the department may petition any


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                                   CS/HB 2415, First Engrossed/ntc



  1  circuit court for an order to comply with the subpoena. The

  2  subpoena must contain a written notice of the right to object

  3  to the subpoena. Every subpoena served upon the witness or

  4  custodian of records must be accompanied by a copy of the

  5  provisions of this subsection. If a person refuses to obey a

  6  subpoena or subpoena duces tecum, the department may apply to

  7  any circuit court of this state to enforce compliance with the

  8  subpoena. Witnesses are entitled to be paid a mileage

  9  allowance and witness fees as authorized for witnesses in

10  civil cases.

11         (b)1.  If any subpoena is served on any person who is a

12  third-party recordkeeper and the subpoena requires the

13  production of any portion of the records made or kept of the

14  business transactions or affairs of any person other than the

15  person subpoenaed, notice of the subpoena must be given to any

16  person to whom the records pertain and to the taxpayer to whom

17  the subpoena relates. Such notice must be given within 3 days

18  after the day on which the service on the third-party

19  recordkeeper is made, if the department can at that time

20  identify the person to whom the records pertain. If the person

21  to whom the records pertain cannot be identified at the time

22  of issuance of the subpoena, the third-party recordkeeper

23  shall immediately inform the department of such person's

24  identity, and the department shall give notice to that person

25  within 3 days thereafter. The notice must be accompanied by a

26  copy of the subpoena that has been served and must contain

27  directions for staying compliance with the subpoena under

28  subparagraph (c)2.

29         2.  The notice is sufficient if, on or before the third

30  day, the notice is delivered in hand to the person entitled to

31  notice or is mailed by certified or registered mail to the


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  1  last known mailing address of the person, or, in the absence

  2  of a last known address, is left with the person subpoenaed.

  3         3.  As used in this subsection, "third-party

  4  recordkeeper" means:

  5         a.  Any mutual savings bank, cooperative bank, domestic

  6  building and loan association, or other savings institution

  7  chartered and supervised as a savings and loan association or

  8  similar association under federal or state law; a bank as

  9  defined in s. 581 of the Internal Revenue Code; or any credit

10  union within the meaning of s. 501(c)(14)(A) of the Internal

11  Revenue Code.

12         b.  Any consumer reporting agency as defined under s.

13  603(f) of the Fair Credit Reporting Act, 15 U.S.C. s.

14  1681a(f).

15         c.  Any person extending credit through the use of

16  credit cards or similar devices.

17         d.  Any broker as defined in s. 3(a)(4) of the

18  Securities Exchange Act of 1934, 15 U.S.C. s. 78c(a)(4).

19         e.  Any attorney.

20         f.  Any accountant.

21         g.  Any barter exchange as defined in s. 6045(c)(3) of

22  the Internal Revenue Code.

23         h.  Any regulated investment company as defined in s.

24  851 of the Internal Revenue Code.

25         4.  This paragraph does not apply to a subpoena served

26  on the person with respect to whose liability the subpoena is

27  issued or an officer or employee of the person; to a subpoena

28  to determine whether or not records of the business

29  transactions or affairs of an identified person have been made

30  or kept; or to a subpoena described in paragraph (f).

31


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                                   CS/HB 2415, First Engrossed/ntc



  1         (c)1.  Notwithstanding any other law, a person who is

  2  entitled to notice of a subpoena under paragraph (b) and the

  3  taxpayer to whom the subpoena relates have the right to

  4  intervene in any proceeding with respect to the enforcement of

  5  the subpoena under paragraph (a).

  6         2.  Notwithstanding any other law, a person who is

  7  entitled to notice of a subpoena under paragraph (b) and the

  8  taxpayer to whom the subpoena relates have the right to stay

  9  compliance with the subpoena if, not later than the 14th day

10  after the day the notice is given in the manner provided in

11  subparagraph (b)2.:

12         a.  Notice of intent to stay the subpoena is given in

13  writing to the person subpoenaed;

14         b.  A copy of the notice of intent to stay the subpoena

15  is mailed by registered or certified mail to the person and to

16  the department; and

17         c.  Suit is filed against the department in the circuit

18  court to stay compliance with the subpoena.

19         (d)  An examination of any records required to be

20  produced under a subpoena as to which notice is required under

21  paragraph (b) may not be made:

22         1.  Before the expiration of the 14-day period allowed

23  for the notice of intent to stay under subparagraph (c)2.; or

24         2.  When the requirements of subparagraph (c)2. have

25  been met, except in accordance with an order issued by the

26  circuit court authorizing examination of the records or with

27  the consent of the person staying compliance.

28         (e)  Any subpoena issued under paragraph (a) which does

29  not identify the person with respect to whose liability the

30  subpoena is issued may be served only after a proceeding in

31  any circuit court in which the department establishes that:


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                                   CS/HB 2415, First Engrossed/ntc



  1         1.  The subpoena relates to the investigation of a

  2  particular person or ascertainable group or class of persons.

  3         2.  There is reasonable basis for believing that the

  4  person or group or class of persons may fail or may have

  5  failed to comply with any provision of state law.

  6         3.  The information sought to be obtained from the

  7  examination of the records and the identity of the person or

  8  persons with respect to whose liability the subpoena is issued

  9  is not readily available from other sources.

10         (f)  In the case of a subpoena issued under paragraph

11  (a), the provisions of subparagraph (b)1. and paragraph (c) do

12  not apply if, upon petition by the department, a circuit court

13  determines, on the basis of the facts and circumstances

14  alleged, that there is reasonable cause to believe that the

15  giving of notice may lead to attempts to conceal, destroy, or

16  alter records relevant to the examination, may prevent the

17  communication of information from other persons through

18  intimidation, bribery, or collusion, or may result in flight

19  to avoid prosecution, testifying, or production of records.

20         (g)1.  Any circuit court has jurisdiction to hear and

21  determine proceedings brought under paragraph (e) or paragraph

22  (f). The determinations required to be made under paragraphs

23  (e) and (f) shall be ex parte and shall be made solely upon

24  the petition and supporting affidavits. An order denying the

25  petition shall be deemed a final order that may be appealed.

26         2.  Except for cases that the court considers of great

27  importance, any proceeding brought for the enforcement of any

28  subpoena or any proceeding under this subsection, and any

29  appeal therefrom, takes precedence on the docket over all

30  cases and shall be assigned for hearing and decided at the

31  earliest practicable date.


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  1         (h)  The department shall by rule establish the rates

  2  and conditions for payments to reimburse reasonably necessary

  3  costs directly incurred by third-party recordkeepers in

  4  searching for, reproducing, or transporting books, papers,

  5  records, or other data required to be produced by subpoena

  6  upon request of the department. The reimbursement shall be in

  7  addition to any mileage allowance and fees paid under

  8  paragraph (a).

  9         (i)1.  Except as provided in subparagraph 2., an action

10  initiated in circuit court under this subsection must be filed

11  in the circuit court in the county where:

12         a.  The taxpayer to whom the subpoena relates resides

13  or maintains his or her principal commercial domicile in this

14  state;

15         b.  The person subpoenaed resides or maintains his or

16  her principal commercial domicile in this state; or

17         c.  The person to whom the records pertain resides or

18  maintains his or her principal commercial domicile in this

19  state.

20         2.  Venue in an action initiated in circuit court under

21  this subsection by a person who is not a resident of this

22  state or does not maintain a commercial domicile in this state

23  rests in Leon County.

24         3.  Venue in an action initiated in circuit court

25  pursuant to paragraph (e) rests in the Second Judicial Circuit

26  Court in and for Leon County.

27         Section 29.  Section 202.37, Florida Statutes, is

28  created to read:

29         202.37  Special rules for administration of local

30  communications services tax.--

31


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  1         (1)(a)  Except as otherwise provided in this section,

  2  all statutory provisions and administrative rules applicable

  3  to the communications services tax imposed by s. 202.12 apply

  4  to any local communications services tax imposed under s.

  5  202.19, and the department shall administer, collect, and

  6  enforce all taxes imposed under s. 202.19, including interest

  7  and penalties attributable thereto, in accordance with the

  8  same procedures used in the administration, collection, and

  9  enforcement of the communications services tax imposed by s.

10  202.12.

11         (b)  The department may contract with one or more

12  private entities to assist it in fulfilling its obligation of

13  administering the local communications services taxes imposed

14  under this chapter, including, but not limited to, the

15  compilation, maintenance, and publication of data pursuant to

16  ss. 202.21 and 202.22.

17         (2)  Each dealer of communications services obligated

18  to collect and remit one or more local communications services

19  taxes imposed under s. 202.19 shall separately report and

20  identify each such tax to the department, by jurisdiction, on

21  a form prescribed by the department, and shall pay such taxes

22  to the department. However, taxes imposed under s. 202.19(5)

23  shall be added to and included in the amounts reported to the

24  department as taxes imposed under s. 202.19(1). A dealer of

25  communications services may include in a single payment to the

26  department:

27         (a)  The total amount of all local communications

28  services taxes imposed pursuant to s. 202.19; and

29         (b)  The amount of communications services tax imposed

30  by ss. 202.12 and 203.01.

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  1         Section 30.  The Revenue Estimating Conference shall

  2  compute the rate of communications services tax which would be

  3  required to be levied under s. 202.12(1)(a), Florida Statutes,

  4  to raise, through the imposition of a communications services

  5  tax, revenues equal to the taxes estimated to be actually

  6  collected under chapter 212, Florida Statutes, on

  7  communications services. The rates computed by the Revenue

  8  Estimating Conference shall be presented to the Legislature

  9  for review and approval during the 2001 Regular Session.

10         Section 31.  The Revenue Estimating Conference shall

11  compute the rate of the tax on the sales price of

12  direct-to-home satellite services pursuant to s. 202.12(1)(c),

13  Florida Statutes, on or before December 31, 2000, and such

14  rate shall be presented to the Legislature for review and

15  approval during the 2001 Regular Session.

16         Section 32.  (1)  The executive director of the

17  Department of Revenue shall appoint members to an advisory

18  committee by August 1, 2000. Each member shall serve at the

19  discretion of the executive director. The committee shall

20  include consumer, county, municipal, state, and communications

21  services dealer representatives, along with other interested

22  parties the executive director deems appropriate. During the

23  period of implementation of the Communications Services Tax

24  Simplification Law, the committee shall advise the executive

25  director regarding the department's transition strategy,

26  development of necessary business processes, rule adoption

27  processes, and processes for identifying issues for further

28  legislative consideration.

29         (2)  This section shall take effect upon this act

30  becoming a law.

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  1         Section 33.  Effective January 1, 2002, paragraph (a)

  2  of subsection (1) of section 72.011, Florida Statutes, is

  3  amended to read:

  4         72.011  Jurisdiction of circuit courts in specific tax

  5  matters; administrative hearings and appeals; time for

  6  commencing action; parties; deposits.--

  7         (1)(a)  A taxpayer may contest the legality of any

  8  assessment or denial of refund of tax, fee, surcharge, permit,

  9  interest, or penalty provided for under s. 125.0104, s.

10  125.0108, chapter 198, chapter 199, chapter 201, chapter 202,

11  chapter 203, chapter 206, chapter 207, chapter 210, chapter

12  211, chapter 212, chapter 213, chapter 220, chapter 221, s.

13  370.07(3), chapter 376, s. 403.717, s. 403.718, s. 403.7185,

14  s. 403.7195, s. 538.09, s. 538.25, chapter 550, chapter 561,

15  chapter 562, chapter 563, chapter 564, chapter 565, chapter

16  624, or s. 681.117 by filing an action in circuit court; or,

17  alternatively, the taxpayer may file a petition under the

18  applicable provisions of chapter 120. However, once an action

19  has been initiated under s. 120.56, s. 120.565, s. 120.569, s.

20  120.57, or s. 120.80(14)(b), no action relating to the same

21  subject matter may be filed by the taxpayer in circuit court,

22  and judicial review shall be exclusively limited to appellate

23  review pursuant to s. 120.68; and once an action has been

24  initiated in circuit court, no action may be brought under

25  chapter 120.

26         Section 34.  Effective January 1, 2002, section 213.05,

27  Florida Statutes, is amended to read:

28         213.05  Department of Revenue; control and

29  administration of revenue laws.--The Department of Revenue

30  shall have only those responsibilities for ad valorem taxation

31  specified to the department in chapter 192, taxation, general


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                                   CS/HB 2415, First Engrossed/ntc



  1  provisions; chapter 193, assessments; chapter 194,

  2  administrative and judicial review of property taxes; chapter

  3  195, property assessment administration and finance; chapter

  4  196, exemption; chapter 197, tax collections, sales, and

  5  liens; chapter 199, intangible personal property taxes; and

  6  chapter 200, determination of millage. The Department of

  7  Revenue shall have the responsibility of regulating,

  8  controlling, and administering all revenue laws and performing

  9  all duties as provided in s. 125.0104, the Local Option

10  Tourist Development Act; s. 125.0108, tourist impact tax;

11  chapter 198, estate taxes; chapter 201, excise tax on

12  documents; chapter 202, communications services tax; chapter

13  203, gross receipts taxes; chapter 206, motor and other fuel

14  taxes; chapter 211, tax on production of oil and gas and

15  severance of solid minerals; chapter 212, tax on sales, use,

16  and other transactions; chapter 220, income tax code; chapter

17  221, emergency excise tax; ss. 336.021 and 336.025, taxes on

18  motor fuel and special fuel; s. 370.07(3), Apalachicola Bay

19  oyster surcharge; s. 376.11, pollutant spill prevention and

20  control; s. 403.718, waste tire fees; s. 403.7185, lead-acid

21  battery fees; s. 403.7195, waste newsprint disposal fees; s.

22  538.09, registration of secondhand dealers; s. 538.25,

23  registration of secondary metals recyclers; s. 624.4621, group

24  self-insurer's fund premium tax; s. 624.5091, retaliatory tax;

25  s. 624.475, commercial self-insurance fund premium tax; ss.

26  624.509-624.511, insurance code: administration and general

27  provisions; s. 624.515, State Fire Marshal regulatory

28  assessment; s. 627.357, medical malpractice self-insurance

29  premium tax; s. 629.5011, reciprocal insurers premium tax; and

30  s. 681.117, motor vehicle warranty enforcement.

31


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  1         Section 35.  Effective January 1, 2002, subsection (6)

  2  of section 212.20, Florida Statutes, is amended to read:

  3         212.20  Funds collected, disposition; additional powers

  4  of department; operational expense; refund of taxes

  5  adjudicated unconstitutionally collected.--

  6         (6)  Distribution of all proceeds under this chapter

  7  and s. 202.18(1)(b) and (2)(b) shall be as follows:

  8         (a)  Proceeds from the convention development taxes

  9  authorized under s. 212.0305 shall be reallocated to the

10  Convention Development Tax Clearing Trust Fund.

11         (b)  Proceeds from discretionary sales surtaxes imposed

12  pursuant to ss. 212.054 and 212.055 shall be reallocated to

13  the Discretionary Sales Surtax Clearing Trust Fund.

14         (c)  Proceeds from the tax imposed pursuant to s.

15  212.06(5)(a)2. shall be reallocated to the Mail Order Sales

16  Tax Clearing Trust Fund.

17         (d)  Proceeds from the fee imposed pursuant to s.

18  212.18(5) shall be deposited in the Solid Waste Management

19  Clearing Trust Fund, which is hereby created to be used by the

20  department, and shall be subsequently transferred to the State

21  Treasurer to be deposited into the Solid Waste Management

22  Trust Fund.

23         (e)  Proceeds from the fees imposed under ss.

24  212.05(1)(i)3. and 212.18(3) shall remain with the General

25  Revenue Fund.

26         (f)  The proceeds of all other taxes and fees imposed

27  pursuant to this chapter or remitted pursuant to s.

28  202.18(1)(b) and (2)(b) shall be distributed as follows:

29         1.  In any fiscal year, the greater of $500 million,

30  minus an amount equal to 4.6 percent of the proceeds of the

31  taxes collected pursuant to chapter 201, or 5 percent of all


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                                   CS/HB 2415, First Engrossed/ntc



  1  other taxes and fees imposed pursuant to this chapter or

  2  remitted pursuant to s. 202.18(1)(b) and (2)(b) shall be

  3  deposited in monthly installments into the General Revenue

  4  Fund.

  5         2.  Two-tenths of one percent shall be transferred to

  6  the Solid Waste Management Trust Fund.

  7         3.  After the distribution under subparagraphs 1. and

  8  2., 9.653 percent of the amount remitted by a sales tax dealer

  9  located within a participating county pursuant to s. 218.61

10  shall be transferred into the Local Government Half-cent Sales

11  Tax Clearing Trust Fund.

12         4.  After the distribution under subparagraphs 1., 2.,

13  and 3., 0.054 percent shall be transferred to the Local

14  Government Half-cent Sales Tax Clearing Trust Fund and

15  distributed pursuant to s. 218.65.

16         5.  Of the remaining proceeds:

17         a.  Beginning July 1, 1992, $166,667 shall be

18  distributed monthly by the department to each applicant that

19  has been certified as a "facility for a new professional

20  sports franchise" or a "facility for a retained professional

21  sports franchise" pursuant to s. 288.1162 and $41,667 shall be

22  distributed monthly by the department to each applicant that

23  has been certified as a "new spring training franchise

24  facility" pursuant to s. 288.1162. Distributions shall begin

25  60 days following such certification and shall continue for 30

26  years. Nothing contained herein shall be construed to allow an

27  applicant certified pursuant to s. 288.1162 to receive more in

28  distributions than actually expended by the applicant for the

29  public purposes provided for in s. 288.1162(7). However, a

30  certified applicant shall receive distributions up to the

31  maximum amount allowable and undistributed under this section


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                                   CS/HB 2415, First Engrossed/ntc



  1  for additional renovations and improvements to the facility

  2  for the franchise without additional certification.

  3         b.  Beginning 30 days after notice by the Office of

  4  Tourism, Trade, and Economic Development to the Department of

  5  Revenue that an applicant has been certified as the

  6  professional golf hall of fame pursuant to s. 288.1168 and is

  7  open to the public, $166,667 shall be distributed monthly, for

  8  up to 300 months, to the applicant.

  9         c.  Beginning 30 days after notice by the Department of

10  Commerce to the Department of Revenue that the applicant has

11  been certified as the International Game Fish Association

12  World Center facility pursuant to s. 288.1169, and the

13  facility is open to the public, $83,333 shall be distributed

14  monthly, for up to 180 months, to the applicant.  This

15  distribution is subject to reduction pursuant to s. 288.1169.

16         6.  All other proceeds shall remain with the General

17  Revenue Fund.

18         Section 36.  Paragraphs (e) and (f) of subsection (9)

19  of section 166.231, Florida Statutes, are amended to read:

20         166.231  Municipalities; public service tax.--

21         (9)  A municipality may levy a tax on the purchase of

22  telecommunication services as defined in s. 203.012 as

23  follows:

24         (e)  Purchases of local telephone service or other

25  telecommunications service for use in the conduct of a

26  telecommunications service for hire or otherwise for resale,

27  including resale of telecommunication services paid by using a

28  prepaid calling arrangement as defined in s. 212.05(1)(e)1.a.,

29  are exempt from the tax imposed by this subsection.

30         (f)  A seller of services which are subject to the tax

31  imposed by a municipality under this subsection shall file a


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                                   CS/HB 2415, First Engrossed/ntc



  1  return with the municipality each month. The form of the

  2  return shall be determined by the seller, and the return shall

  3  be deemed sufficient if it identifies the name and address of

  4  the seller, the period of the return, the amount collected

  5  from the sale of taxable services, any collection allowance

  6  taken, the amount of tax remitted with the return, and the

  7  name and telephone number of a person authorized by the seller

  8  to respond to inquiries from municipalities concerning the

  9  seller's administration of the tax. A municipality may not

10  require any return or payment of public service tax other than

11  on a date returns and payments of tax are required under

12  chapter 212. However, a municipality may grant an extension of

13  the due date for a return or payment upon written request from

14  the seller. The deduction authorized by paragraph (b) shall

15  not be allowed in the event of an untimely return, unless the

16  seller has in writing requested and been granted an extension

17  of time for filing such return. Extensions of time shall be

18  granted if reasonable cause is shown, whether requested before

19  or after the due date of the return. Notwithstanding any other

20  provision of law, the public service tax shall not be

21  collected at point of sale on prepaid calling arrangements.

22         Section 37.  Effective July 1, 2000, all taxes that

23  have been collected pursuant to s. 166.231(9)(f), Florida

24  Statutes, at the point of sale on prepaid calling arrangements

25  prior to July 1, 2000, must be remitted, and taxes that have

26  been collected at the point of sale on prepaid calling

27  arrangements and remitted before July 1, 2000, are not subject

28  to refund. Any taxes that were not collected pursuant to s.

29  166.231(9)(f), Florida Statutes, prior to July 1, 2000, at the

30  point of sale on prepaid calling arrangements need not be paid

31  and are forgiven.


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  1         Section 38.  Effective January 1, 2002, and applicable

  2  to communications services reflected on bills dated on or

  3  after that date, subsection (9) of section 166.231, Florida

  4  Statutes, as amended by this act, is repealed, and subsections

  5  (2), (5), (7), and (10) of said section are amended to read:

  6         166.231  Municipalities; public service tax.--

  7         (2)  Services competitive with those enumerated in

  8  subsection (1) or subsection (9), as defined by ordinance,

  9  shall be taxed on a comparable base at the same rates.

10  However, fuel oil shall be taxed at a rate not to exceed 4

11  cents per gallon. However, for municipalities levying less

12  than the maximum rate allowable in subsection (1), the maximum

13  tax on fuel oil shall bear the same proportion to 4 cents

14  which the tax rate levied under subsection (1) bears to the

15  maximum rate allowable in subsection (1).

16         (5)  Purchases by the United States Government, this

17  state, and all counties, school districts, and municipalities

18  of the state, and by public bodies exempted by law or court

19  order, are exempt from the tax authorized by this section. A

20  municipality may exempt from the tax imposed by this section

21  the purchase of taxable items by any other public body as

22  defined in s. 1.01, or by a nonprofit corporation or

23  cooperative association organized under chapter 617 which

24  provides water utility services to no more than 13,500

25  equivalent residential units, ownership of which will revert

26  to a political subdivision upon retirement of all outstanding

27  indebtedness, and shall exempt purchases by any recognized

28  church in this state for use exclusively for church purposes,

29  and shall exempt from the tax authorized by subsection (9)

30  purchases made by any religious institution that possesses a

31  consumer certificate of exemption issued under chapter 212.


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                                   CS/HB 2415, First Engrossed/ntc



  1         (7)  The tax authorized hereunder shall be collected by

  2  the seller of the taxable item from the purchaser at the time

  3  of the payment for such service.  The seller shall remit the

  4  taxes collected to the municipality in the manner prescribed

  5  by ordinance, except that remittance of taxes by sellers of

  6  telecommunication services shall be governed by paragraph

  7  (9)(f). Except as otherwise provided in ss. 166.233 and

  8  166.234, the seller shall be liable for taxes that are due and

  9  not remitted to the municipality. This shall not bar the

10  seller from recovering such taxes from purchasers; however,

11  the universities in the State University System shall not be

12  deemed a seller of any item otherwise taxable hereunder when

13  such item is provided to university residences incidental to

14  the provision of educational services.

15         (10)  A purchaser who claims an exemption under

16  subsection (4) or, subsection (5), or paragraph (9)(e) shall

17  certify to the seller that he or she qualifies for the

18  exemption, which certification may encompass all purchases

19  after a specified date or other multiple purchases. For

20  purchases made under paragraph (9)(e) which are exempted, upon

21  the presentation of a certificate, from the tax imposed by

22  chapter 212, the certification required by this subsection may

23  be satisfied by presentation of a certificate that satisfies

24  the requirements of chapter 212. A seller accepting the

25  certification required by this subsection is relieved of the

26  obligation to collect and remit tax; however, a governmental

27  body that is exempt from the tax authorized by this section

28  shall not be required to furnish such certification, and a

29  seller is not required to collect tax from such an exempt

30  governmental body.

31


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  1         Section 39.  Effective January 1, 2002, paragraph (c)

  2  of subsection (1) and subsection (2) of section 166.233,

  3  Florida Statutes, are amended to read:

  4         166.233  Public service tax; effective dates;

  5  procedures for informing sellers of tax levies and related

  6  information.--

  7         (1)  As used in this section and ss. 166.231, 166.232,

  8  and 166.234:

  9         (c)  "Levy" means and includes the imposition of a tax

10  under s. 166.231 or s. 166.232 and, all changes in the rate of

11  a tax imposed under either of those sections, and all changes

12  of election under s. 166.231(9)(a).

13         (2)(a)  A tax levy must be adopted by ordinance, and

14  the effective date of every levy or repeal thereof must be a

15  subsequent January 1, April 1, July 1, or October 1. A

16  municipality shall notify the department of the adoption or

17  repeal of a levy at least 120 days before the effective date

18  thereof. Such notification must be furnished on a form

19  prescribed by the department and must specify the services

20  taxed under the authority of s. 166.231 or s. 166.232,

21  including any election under s. 166.231(9)(a), the rate of tax

22  applied to each service, the effective date of the levy or

23  repeal thereof, and the name, mailing address, and telephone

24  number of a person designated by the municipality to respond

25  to inquiries concerning the tax. The department shall maintain

26  this information for the purpose of responding to inquiries

27  with respect thereto, and any person may, in writing, request

28  such information from the department. For purposes of this

29  section, a response to such a person is timely if in writing

30  and dated no later than 20 days after the receipt of the

31  request. The department shall charge such persons a fee to


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                                   CS/HB 2415, First Engrossed/ntc



  1  recover the actual cost of maintaining and furnishing such

  2  information. The department has no liability for any loss of

  3  or decrease in revenue by reason of any error, omission, or

  4  untimely action that results in the nonpayment of the tax

  5  imposed under s. 166.231 or s. 166.232. The provisions of this

  6  paragraph which prescribe effective dates and require

  7  municipalities to furnish notifications to the department do

  8  not apply to taxes levied on service, other than

  9  telecommunication service, provided by the municipality

10  levying the tax or by a separate utility authority, board, or

11  commission of the municipality.

12         (b)  The department may contract with a private entity

13  to maintain and furnish the information described in paragraph

14  (a); however, the department shall establish the fee charged

15  to persons requesting that information.

16         Section 40.  Subsections (3) and (4) of section 203.01,

17  Florida Statutes, are amended to read:

18         203.01  Tax on gross receipts for utility services.--

19         (3)  The term "gross receipts" as used herein does not

20  include gross receipts of any person derived from:

21         (a)  The sale of natural gas to a public or private

22  utility, including a municipal corporation or rural electric

23  cooperative association, either for resale or for use as fuel

24  in the generation of electricity;

25         (b)  The sale of electricity to a public or private

26  utility, including a municipal corporation or rural electric

27  cooperative association, for resale within the state, or as

28  part of an electrical interchange agreement or contract

29  between such utilities for the purpose of transferring more

30  economically generated power; or

31


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                                   CS/HB 2415, First Engrossed/ntc



  1         (c)  The sale of telecommunication services for resale

  2  of telecommunication services wholly or partially within this

  3  state, which includes, for purposes of this subsection, the

  4  sale of telecommunication services to a person reselling such

  5  telecommunication services by way of a prepaid calling

  6  arrangement as defined in s. 212.05(1)(e)1.a.;

  7

  8  provided the person deriving gross receipts from such sale

  9  demonstrates that a resale in fact occurred and complies with

10  the following requirements: A resale in this state must be in

11  strict compliance with the rules and regulations of the

12  Department of Revenue; and any person making a sale for resale

13  in this state which is not in strict compliance with the rules

14  and regulations of the Department of Revenue shall be liable

15  for and pay the tax. Any person making a sale for resale in

16  this state may, through an informal protest provided for in s.

17  213.21 and the rules of the Department of Revenue, provide the

18  department with evidence of the exempt status of a sale.  The

19  department shall adopt rules which provide that valid proof

20  and documentation of the resale in this state by a person

21  making the sale for resale in this state will be accepted by

22  the department when submitted during the protest period but

23  will not be accepted when submitted in any proceeding under

24  chapter 120 or any circuit court action instituted under

25  chapter 72.

26         (4)  Gross receipts subject to the tax imposed by this

27  section shall not include receipts from sales or leases of

28  telecommunications service for use in the conduct of a

29  telecommunications service for hire or otherwise for resale,

30  including resale of telecommunication services paid by using a

31  prepaid calling arrangement as defined in s. 212.05(1)(e)1.a.


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                                   CS/HB 2415, First Engrossed/ntc



  1         Section 41.  Effective January 1, 2002, and applicable

  2  to communications services reflected on bills dated on or

  3  after that date, section 203.01, Florida Statutes, as amended

  4  by this act, is amended to read:

  5         203.01  Tax on gross receipts for utility and

  6  communications services.--

  7         (1)(a)1.  Every person that receives payment for any

  8  utility service shall report by the last day of each month to

  9  the Department of Revenue, under oath of the secretary or some

10  other officer of such person, the total amount of gross

11  receipts derived from business done within this state, or

12  between points within this state, for the preceding month and,

13  at the same time, shall pay into the State Treasury an amount

14  equal to a percentage of such gross receipts at the rate set

15  forth in paragraph (b).  Such collections shall be certified

16  by the Comptroller upon the request of the State Board of

17  Education.

18         2.  A tax is levied on communications services as

19  defined in s. 202.11(3). Such tax shall be applied to the same

20  services and transactions as are subject to taxation under

21  chapter 202, and to communications services that are subject

22  to the exemption provided in s. 202.125(1). Such tax shall be

23  applied to the sales price of communications services when

24  sold at retail and to the actual cost of operating substitute

25  communications systems, as such terms are defined in s.

26  202.11, shall be due and payable at the same time as the taxes

27  imposed pursuant to chapter 202, and shall be administered and

28  collected pursuant to the provisions of chapter 202.

29         (b)  Beginning July 1, 1992, and thereafter, The rate

30  applied to utility services shall be 2.5 percent. The rate

31


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                                   CS/HB 2415, First Engrossed/ntc



  1  applied to communications services shall be the rate

  2  calculated pursuant to section 44 of this act.

  3         (c)  Any person who purchases, installs, rents, or

  4  leases a telephone system or telecommunication system for his

  5  or her own use to provide that person with telephone service

  6  or telecommunication service which is a substitute for any

  7  telephone company switched service or a substitute for any

  8  dedicated facility by which a telephone company provides a

  9  communication path shall register with the Department of

10  Revenue and pay into the State Treasury a yearly amount equal

11  to a percentage of the actual cost of operating such system at

12  the rate set forth in paragraph (b). "Actual cost" includes,

13  but is not limited to, depreciation, interest, maintenance,

14  repair, and other expenses directly attributable to the

15  operation of such system.  For purposes of this paragraph, the

16  depreciation expense to be included in actual cost shall be

17  the depreciation expense claimed for federal income tax

18  purposes. The total amount of any payment required by a lease

19  or rental contract or agreement shall be included within the

20  actual cost.  The provisions of this paragraph do not apply to

21  the use by any local telephone company or any

22  telecommunication carrier of its own telephone system or

23  telecommunication system to conduct a telecommunication

24  service for hire or to the use of any radio system operated by

25  any county or municipality or by the state or any political

26  subdivision thereof.  If a system described in this paragraph

27  is located in more than one state, the actual cost of such

28  system for purposes of this paragraph shall be the actual cost

29  of the system's equipment located in Florida.  The term

30  "telecommunications carrier" specifically includes cellular

31  telephone carriers and other radio common carriers.


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                                   CS/HB 2415, First Engrossed/ntc



  1         (c)(d)  Electricity produced by cogeneration or by

  2  small power producers which is transmitted and distributed by

  3  a public utility between two locations of a customer of the

  4  utility pursuant to s. 366.051 is subject to the tax imposed

  5  by this section.  The tax shall be applied to the cost price

  6  of such electricity as provided in s. 212.02(4) and shall be

  7  paid each month by the producer of such electricity.

  8         (d)(e)  Electricity produced by cogeneration or by

  9  small power producers during the 12-month period ending June

10  30 of each year which is in excess of nontaxable electricity

11  produced during the 12-month period ending June 30, 1990, is

12  subject to the tax imposed by this section.  The tax shall be

13  applied to the cost price of such electricity as provided in

14  s. 212.02(4) and shall be paid each month, beginning with the

15  month in which total production exceeds the production of

16  nontaxable electricity for the 12-month period ending June 30,

17  1990.  For purposes of this paragraph, "nontaxable

18  electricity" means electricity produced by cogeneration or by

19  small power producers which is not subject to tax under

20  paragraph (c) (d).  Taxes paid pursuant to paragraph (c) (d)

21  may be credited against taxes due under this paragraph.

22  Electricity generated as part of an industrial manufacturing

23  process which manufactures products from phosphate rock, raw

24  wood fiber, paper, citrus or any agricultural product shall

25  not be subject to the tax imposed by this paragraph.

26  "Industrial manufacturing process" means the entire process

27  conducted at the location where the process takes place.

28         (e)(f)  Any person other than a cogenerator or small

29  power producer described in paragraph (d) (e) who produces for

30  his or her own use electrical energy which is a substitute for

31  electrical energy produced by an electric utility as defined


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                                   CS/HB 2415, First Engrossed/ntc



  1  in s. 366.02 is subject to the tax imposed by this section.

  2  The tax shall be applied to the cost price of such electrical

  3  energy as provided in s. 212.02(4) and shall be paid each

  4  month.  The provisions of this paragraph do not apply to any

  5  electrical energy produced and used by an electric utility.

  6         (2)(a)  In addition to any other penalty provided by

  7  law, any person who fails to timely report and pay any tax

  8  imposed on gross receipts from utility services under this

  9  chapter shall pay a penalty equal to 10 percent of any unpaid

10  tax, if the failure is for less than 31 days, plus an

11  additional 10 percent of any unpaid tax for each additional 30

12  days or fraction thereof.  However, such penalty may not be

13  less than $10 or exceed a total of 50 percent in the aggregate

14  of any unpaid tax.

15         (b)  In addition to any other penalty provided by law,

16  any person who falsely or fraudulently reports or unlawfully

17  attempts to evade paying any tax imposed on gross receipts

18  from utility services under this chapter shall pay a penalty

19  equal to 100 percent of any tax due and is guilty of a

20  misdemeanor of the second degree, punishable as provided under

21  s. 775.082 or s. 775.083.

22         (3)  The term "gross receipts" as used herein does not

23  include gross receipts of any person derived from:

24         (a)  The sale of natural gas to a public or private

25  utility, including a municipal corporation or rural electric

26  cooperative association, either for resale or for use as fuel

27  in the generation of electricity; or

28         (b)  The sale of electricity to a public or private

29  utility, including a municipal corporation or rural electric

30  cooperative association, for resale within the state, or as

31  part of an electrical interchange agreement or contract


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                                   CS/HB 2415, First Engrossed/ntc



  1  between such utilities for the purpose of transferring more

  2  economically generated power; or

  3         (c)  The sale of telecommunication services for resale

  4  of telecommunication services wholly or partially within this

  5  state, which includes, for purposes of this subsection, the

  6  sale of telecommunication services to a person reselling such

  7  telecommunication services by way of a prepaid calling

  8  arrangement as defined in s. 212.05(1)(e)1.a.;

  9

10  provided the person deriving gross receipts from such sale

11  demonstrates that a resale in fact occurred and complies with

12  the following requirements: A resale in this state must be in

13  strict compliance with the rules and regulations of the

14  Department of Revenue; and any person making a sale for resale

15  in this state which is not in strict compliance with the rules

16  and regulations of the Department of Revenue shall be liable

17  for and pay the tax. Any person making a sale for resale in

18  this state may, through an informal protest provided for in s.

19  213.21 and the rules of the Department of Revenue, provide the

20  department with evidence of the exempt status of a sale.  The

21  department shall adopt rules which provide that valid proof

22  and documentation of the resale in this state by a person

23  making the sale for resale in this state will be accepted by

24  the department when submitted during the protest period but

25  will not be accepted when submitted in any proceeding under

26  chapter 120 or any circuit court action instituted under

27  chapter 72.

28         (4)  Gross receipts subject to the tax imposed by this

29  section shall not include receipts from sales or leases of

30  telecommunications service for use in the conduct of a

31  telecommunications service for hire or otherwise for resale,


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                                   CS/HB 2415, First Engrossed/ntc



  1  including resale of telecommunication services paid by using a

  2  prepaid calling arrangement as defined in s. 212.05(1)(e)1.a.

  3         (4)(5)  The tax imposed pursuant to this chapter part

  4  relating to the provision of any utility services at the

  5  option of the person supplying the taxable services may be

  6  separately stated as Florida gross receipts tax on the total

  7  amount of any bill, invoice, or other tangible evidence of the

  8  provision of such taxable services and may be added as a

  9  component part of the total charge. Whenever a provider of

10  taxable services elects to separately state such tax as a

11  component of the charge for the provision of such taxable

12  services, every person, including all governmental units,

13  shall remit the tax to the person who provides such taxable

14  services as a part of the total bill, and the tax is a

15  component part of the debt of the purchaser to the person who

16  provides such taxable services until paid and, if unpaid, is

17  recoverable at law in the same manner as any other part of the

18  charge for such taxable services.  For a utility, the decision

19  to separately state any increase in the rate of tax imposed by

20  this chapter part which is effective after December 31, 1989,

21  and the ability to recover the increased charge from the

22  customer shall not be subject to regulatory approval.

23         (5)(6)  The tax is imposed upon every person for the

24  privilege of conducting a utility or communications services

25  business, and each provider of the taxable services remains

26  fully and completely liable for the tax, even if the tax is

27  separately stated as a line item or component of the total

28  bill.

29         (6)(7)  Any person who provides such services and who

30  fails, neglects, or refuses to remit the tax imposed in this

31  chapter part, either by himself or herself, or through agents


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                                   CS/HB 2415, First Engrossed/ntc



  1  or employees, is liable for the tax and is guilty of a

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

  3  775.082 or s. 775.083.

  4         (7)(8)  Gross receipts subject to the tax imposed by

  5  this section for the provision of electricity shall include

  6  receipts from monthly customer charges or monthly customer

  7  facility charges.

  8         (9)(a)  If the sale of a taxable telecommunication

  9  service also involves the sale of commercial or cable

10  television service exempt under the provision of s.

11  203.012(2)(b)2., the tax shall be applied to the value of the

12  taxable service when it is sold separately.

13         (b)  If the company does not offer this service

14  separately, the consideration paid shall be separately

15  identified and stated with respect to the taxable and exempt

16  portions of the transaction as a condition of the exemption.

17         (c)  The amounts identified as taxable in paragraph (b)

18  shall not be less than the statewide average tariff rates set

19  forth by the local exchange telecommunications companies in

20  the tariffs filed with the Public Service Commission on

21  January 1, 1995, and on January 1 of each year thereafter for

22  the equivalent services subject to the provisions of this

23  section.  The Public Service Commission shall publish the

24  statewide average tariff rates for commonly used services

25  annually, beginning on January 1, 1996.

26         (8)(10)  Notwithstanding the provisions of subsection

27  (4) (5) and s. 212.07(2), sums that were charged or billed as

28  taxes under this section and chapter 212 and that were

29  remitted to the state in full as taxes shall not be subject to

30  refund by the state or by the utility or other person that

31  which remitted the sums, when the amount remitted was not in


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                                   CS/HB 2415, First Engrossed/ntc



  1  excess of the amount of tax imposed by chapter 212 and this

  2  section.

  3         Section 42.  Effective January 1, 2002, section

  4  203.012, Florida Statutes, is amended to read:

  5         203.012  Definitions.--As used in this chapter:

  6         (1)  The term "access charge" or "right of access"

  7  means any charge to any person for the right to use or for the

  8  use of a telephone system which includes equipment,

  9  facilities, or services to originate or terminate any of the

10  services defined in subsection (4), subsection (5), subsection

11  (6), or subsection (7) and which specifically includes

12  customer access line charges, which includes the gross amount

13  paid by subscribers and users in this state for access into

14  the intrastate or interstate interexchange network as

15  authorized by the Federal Communications Commission or the

16  Florida Public Service Commission.

17         (2)(a)  Gross receipts from telecommunication services

18  include the gross receipts for all telecommunication services

19  of whatever nature, including, but not limited to, access

20  charges and charges for right of access; residential and

21  business 1-party, 2-party, and 4-party rotary charges; centrex

22  charges; directory assistance charges; public telephone

23  charges; touch-tone charges; emergency number charges; private

24  branch exchange message charges; public announcement service

25  charges; dial-it charges; local area data transport charges;

26  key lines charges; private branch exchange trunk-flat rate

27  charges; and directory listing charges other than yellow-page

28  classified listing charges.

29         (b)  Gross receipts for telecommunication services do

30  not include:

31


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                                   CS/HB 2415, First Engrossed/ntc



  1         1.  Charges for customer premises equipment, including

  2  such equipment that is leased or rented by the customer from

  3  any source;

  4         2.  Charges made to the public for commercial or cable

  5  television, unless it is used for two-way communication;

  6  however, if such two-way communication service is separately

  7  billed, only the charges made for two-way communication

  8  service will be subject to tax hereunder;

  9         3.  Charges made by hotels and motels, which are

10  required under the provisions of s. 212.03 to collect

11  transient rentals tax from tenants and lessees, for local

12  telephone service or toll telephone service, when such charge

13  occurs incidental to the right of occupancy in such hotel or

14  motel;

15         4.  Connection and disconnection charges; move or

16  change charges; suspension of service charges; and service

17  order, number change, and restoration charges; or

18         5.  Charges for services or items of equipment supplied

19  by providers of the telecommunication services described in

20  paragraph (5)(b), such as maintenance charges, equipment

21  sales, or rental which are incidental to the provision of such

22  telecommunication services, provided such charges are

23  separately stated, itemized, or described on the bill,

24  invoice, or other tangible evidence of the provision of such

25  service.

26         (3)  The term "local telephone service" means:

27         (a)  The access to a local telephone system, and the

28  privilege of telephonic-quality communication with

29  substantially all persons having telephone or radio telephone

30  stations constituting a part of such local telephone system;

31  or


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                                   CS/HB 2415, First Engrossed/ntc



  1         (b)  Any facility or service provided in connection

  2  with a service described in paragraph (a).

  3

  4  The term "local telephone service" does not include any

  5  service which is a toll telephone service; private

  6  communication service; cellular mobile telephone or

  7  telecommunication service; specialized mobile radio, or pagers

  8  and paging, service, including but not limited to "beepers"

  9  and any other form of mobile and portable one-way or two-way

10  communication; or teletypewriter service.

11         (4)  The term "private communication service" means:

12         (a)  A communication service furnished to a subscriber

13  or user that entitles the subscriber or user to exclusive or

14  priority use of a communication channel or groups of channels,

15  or to the use of an intercommunication system for the

16  subscriber's stations, regardless of whether such channel,

17  groups of channels, or intercommunication system may be

18  connected through switching with a service described in

19  subsection (3), subsection (6), or subsection (7);

20         (b)  Switching capacity, extension lines, and stations,

21  or other associated services which are provided in connection

22  with, and which are necessary or unique to the use of,

23  channels or systems described in paragraph (a); or

24         (c)  The channel mileage which connects a telephone

25  station located outside a local telephone system area with a

26  central office in such local telephone system.

27         (5)  The term "telecommunication service" means:

28         (a)  Local telephone service, toll telephone service,

29  telegram or telegraph service, teletypewriter service, or

30  private communication service; or

31


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                                   CS/HB 2415, First Engrossed/ntc



  1         (b)  Cellular mobile telephone or telecommunication

  2  service; or specialized mobile radio, and pagers and paging,

  3  service, including but not limited to "beepers" and any other

  4  form of mobile and portable one-way or two-way communication;

  5  but does not include services or equipment incidental to

  6  telecommunication services enumerated in this paragraph such

  7  as maintenance of customer premises equipment, whether owned

  8  by the customer or not, or equipment sales or rental for which

  9  charges are separately stated, itemized, or described on the

10  bill, invoice, or other tangible evidence of the provision of

11  such service.

12

13  The term "telecommunication service" does not include any

14  Internet access service, electronic mail service, electronic

15  bulletin board service, or similar on-line computer service.

16         (6)  The term "teletypewriter service" means the access

17  from a teletypewriter, telephone, or other data station of

18  which such station is a part, and the privilege of

19  intercommunication by such station with substantially all

20  persons having teletypewriter, telephone, or other data

21  stations constituting a part of the same teletypewriter

22  system, to which the subscriber or user is entitled upon

23  payment of a charge or charges, whether such charge or charges

24  are determined as a flat periodic amount, on the basis of

25  distance and elapsed transmission time, or some other method.

26  The term "teletypewriter service" does not include local

27  telephone service or toll telephone service.

28         (7)  The term "toll telephone service" means:

29         (a)  A telephonic-quality communication for which there

30  is a toll charge which varies in amount with the distance and

31  elapsed transmission time of each individual communication; or


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                                   CS/HB 2415, First Engrossed/ntc



  1         (b)  A service which entitles the subscriber or user,

  2  upon the payment of a periodic charge which is determined as a

  3  flat amount or upon the basis of total elapsed transmission

  4  time, to the privilege of an unlimited number of telephonic

  5  communications to or from all or a substantial portion of the

  6  persons having telephone or radio telephone stations in a

  7  specified area which is outside the local telephone system

  8  area in which the station provided with this service is

  9  located.

10

11  The term "toll telephone service" includes interstate and

12  intrastate wide-area telephone service charges.

13         (8)  The term "interstate," as applied to

14  telecommunication services, means originating in this state

15  but not terminating in this state, or terminating in this

16  state but not originating in this state.

17         (1)(9)  The term "Utility service" means electricity

18  for light, heat, or power; and natural or manufactured gas for

19  light, heat, or power; or telecommunication services.

20         (2)(10)  The term "Person" means any person as defined

21  in s. 212.02.

22         Section 43.  Effective January 1, 2002, sections

23  203.013, 203.60, 203.61, 203.62, and 203.63, Florida Statutes,

24  are repealed.

25         Section 44.  The Revenue Estimating Conference shall

26  compute the rate of communications services tax which would be

27  required to be levied under chapter 203, Florida Statutes, as

28  amended by this act, to raise, through the imposition of a tax

29  on communications services as defined in chapter 202, Florida

30  Statutes, revenues equal to the taxes estimated to be actually

31  collected under chapter 203, Florida Statutes, on


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                                   CS/HB 2415, First Engrossed/ntc



  1  communications services. The rates computed by the Revenue

  2  Estimating Conference shall be presented to the Legislature

  3  for review and approval during the 2001 Regular Session.

  4         Section 45.  Paragraph (e) of subsection (1) of section

  5  212.05, Florida Statutes, is amended to read:

  6         212.05  Sales, storage, use tax.--It is hereby declared

  7  to be the legislative intent that every person is exercising a

  8  taxable privilege who engages in the business of selling

  9  tangible personal property at retail in this state, including

10  the business of making mail order sales, or who rents or

11  furnishes any of the things or services taxable under this

12  chapter, or who stores for use or consumption in this state

13  any item or article of tangible personal property as defined

14  herein and who leases or rents such property within the state.

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

16  levied on each taxable transaction or incident, which tax is

17  due and payable as follows:

18         (e)1.  At the rate of 6 percent on charges for:

19         a.  All telegraph messages and long-distance telephone

20  calls beginning and terminating in this state,

21  telecommunication service as defined in s. 203.012, and those

22  services described in s. 203.012(2)(a), except that the tax

23  rate for charges for telecommunication service other than

24  charges for prepaid calling arrangements is 7 percent. The tax

25  on charges for prepaid calling arrangements calls made with a

26  prepaid telephone calling card shall be collected at the time

27  of sale and remitted by the selling dealer selling or

28  recharging a prepaid telephone card.

29         (I)  "Prepaid calling arrangement" means the separately

30  stated retail sale by advance payment of communications

31  services that consist exclusively of telephone calls


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                                   CS/HB 2415, First Engrossed/ntc



  1  originated by using an access number, authorization code, or

  2  other means that may be manually, electronically, or otherwise

  3  entered, and that are sold in predetermined units or dollars

  4  of which the number declines with use in a known amount. A

  5  prepaid telephone card or authorization number means the right

  6  to exclusively make telephone calls that must be paid for in

  7  advance and that enable the origination of calls using an

  8  access number, prepaid mobile account, or authorization code,

  9  whether manually or electronically dialed.

10         (II)  If the sale or recharge of the prepaid telephone

11  calling arrangement card does not take place at the dealer's

12  place of business, it shall be deemed to take place at the

13  customer's shipping address or, if no item is shipped, at the

14  customer's address or the location associated with the

15  customer's mobile 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 phone card

21  constitutes property in this state and subjects the selling

22  dealer to the jurisdiction of this state for purposes of this

23  subsection. Notwithstanding any other provision of this

24  sub-sub-subparagraph, the sale of telecommunication services

25  to a person who furnishes telecommunication services pursuant

26  to a prepaid calling arrangement is deemed a sale for resale,

27  and a dealer selling telecommunication services to such a

28  person shall accept a resale certificate in lieu of the tax,

29  in accordance with rules of the department.

30         b.  Any television system program service.

31


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                                   CS/HB 2415, First Engrossed/ntc



  1         c.  The installation of telecommunication and

  2  telegraphic equipment.

  3         d.  Electrical power or energy, except that the tax

  4  rate for charges for electrical power or energy is 7 percent.

  5         2.  For purposes of this chapter, "television system

  6  program service" means the transmitting, by any means, of any

  7  audio or video signal to a subscriber for other than

  8  retransmission, or the installing, connecting, reconnecting,

  9  disconnecting, moving, or changing of any equipment related to

10  such service.  For purposes of this chapter, the term

11  "telecommunication service" does not include local service

12  provided through a pay telephone. The provisions of s.

13  212.17(3), regarding credit for tax paid on charges

14  subsequently found to be worthless, shall be equally

15  applicable to any tax paid under the provisions of this

16  section on charges for prepaid calling arrangements,

17  telecommunication or telegraph services, or electric power

18  subsequently found to be uncollectible. The word "charges" in

19  this paragraph does not include any excise or similar tax

20  levied by the Federal Government, any political subdivision of

21  the state, or any municipality upon the purchase, or sale, or

22  recharge of prepaid calling arrangements or upon the purchase

23  or sale of telecommunication, television system program, or

24  telegraph service or electric power, which tax is collected by

25  the seller from the purchaser.

26         3.  Telegraph messages and telecommunication services

27  which originate or terminate in this state, other than

28  interstate private communication services, and are billed to a

29  customer, telephone number, or device located within this

30  state are taxable under this paragraph.  Interstate private

31


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                                   CS/HB 2415, First Engrossed/ntc



  1  communication services are taxable under this paragraph as

  2  follows:

  3         a.  One hundred percent of the charge imposed at each

  4  channel termination point within this state;

  5         b.  One hundred percent of the charge imposed for the

  6  total channel mileage between each channel termination point

  7  within this state; and

  8         c.  The portion of the interstate interoffice channel

  9  mileage charge as determined by multiplying said charge times

10  a fraction, the numerator of which is the air miles between

11  the last channel termination point in this state and the

12  vertical and horizontal coordinates, 7856 and 1756,

13  respectively, and the denominator of which is the air miles

14  between the last channel termination point in this state and

15  the first channel termination point outside this state.  The

16  denominator of this fraction shall be adjusted, if necessary,

17  by adding the numerator of said fraction to similarly

18  determined air miles in the state in which the other channel

19  termination point is located, so that the summation of the

20  apportionment factor for this state and the apportionment

21  factor for the other state is not greater than one, to ensure

22  that no more than 100 percent of the interstate interoffice

23  channel mileage charge can be taxed by this state and another

24  state.

25         4.  The tax imposed pursuant to this paragraph shall

26  not exceed $50,000 per calendar year on charges to any person

27  for interstate telecommunications services defined in s.

28  203.012(4) and (7)(b), if the majority of such services used

29  by such person are for communications originating outside of

30  this state and terminating in this state.  This exemption

31  shall only be granted to holders of a direct pay permit issued


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                                   CS/HB 2415, First Engrossed/ntc



  1  pursuant to this subparagraph.  No refunds shall be given for

  2  taxes paid prior to receiving a direct pay permit. Upon

  3  application, the department may issue a direct pay permit to

  4  the purchaser of telecommunications services authorizing such

  5  purchaser to pay tax on such services directly to the

  6  department. Any vendor furnishing telecommunications services

  7  to the holder of a valid direct pay permit shall be relieved

  8  of the obligation to collect and remit the tax on such

  9  service. Tax payments and returns pursuant to a direct pay

10  permit shall be monthly. For purposes of this subparagraph,

11  the term "person" shall be limited to a single legal entity

12  and shall not be construed as meaning a group or combination

13  of affiliated entities or entities controlled by one person or

14  group of persons.

15         5.  If the sale of a television system program service,

16  as defined in this paragraph, also involves the sale of an

17  item exempt under s. 212.08(7)(j), the tax shall be applied to

18  the value of the taxable service when it is sold separately.

19  If the company does not offer this service separately, the

20  consideration paid shall be separately identified and stated

21  with respect to the taxable and exempt portions of the

22  transaction as a condition of the exemption, except that the

23  amount identified as taxable shall not be less than the cost

24  of the service.

25         Section 46.  Effective July 1, 2000, all taxes that

26  have been collected pursuant to s. 212.05(1)(e), Florida

27  Statutes, at the point of sale on prepaid calling arrangements

28  before July 1, 2000, must be remitted, and taxes that have

29  been collected at the point of sale on prepaid calling

30  arrangements and remitted before July 1, 2000, are not subject

31  to refund. Any taxes that were not collected pursuant to s.


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                                   CS/HB 2415, First Engrossed/ntc



  1  212.05(1)(e) before July 1, 2000, at point of sale on prepaid

  2  calling arrangements need not be paid and are forgiven.

  3         Section 47.  Paragraph (b) of subsection (2) of section

  4  212.054, Florida Statutes, is amended to read:

  5         212.054  Discretionary sales surtax; limitations,

  6  administration, and collection.--

  7         (2)

  8         (b)  However:

  9         1.  The tax on any sales amount above $5,000 on any

10  item of tangible personal property and on long-distance

11  telephone service shall not be subject to the surtax.

12  However, charges for prepaid calling arrangements, as defined

13  in s. 212.05(1)(e)1.a., shall be subject to the surtax. For

14  purposes of administering the $5,000 limitation on an item of

15  tangible personal property, if two or more taxable items of

16  tangible personal property are sold to the same purchaser at

17  the same time and, under generally accepted business practice

18  or industry standards or usage, are normally sold in bulk or

19  are items that, when assembled, comprise a working unit or

20  part of a working unit, such items must be considered a single

21  item for purposes of the $5,000 limitation when supported by a

22  charge ticket, sales slip, invoice, or other tangible evidence

23  of a single sale or rental. The limitation provided in this

24  subparagraph does not apply to the sale of any other service.

25         2.  In the case of utility, telecommunication, or

26  television system program services billed on or after the

27  effective date of any such surtax, the entire amount of the

28  charge tax for utility, telecommunication, or television

29  system program services shall be subject to the surtax.  In

30  the case of utility, telecommunication, or television system

31  program services billed after the last day the surtax is in


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                                   CS/HB 2415, First Engrossed/ntc



  1  effect, the entire amount of the charge tax on said items

  2  shall not be subject to the surtax.

  3         3.  In the case of written contracts which are signed

  4  prior to the effective date of any such surtax for the

  5  construction of improvements to real property or for

  6  remodeling of existing structures, the surtax shall be paid by

  7  the contractor responsible for the performance of the

  8  contract.  However, the contractor may apply for one refund of

  9  any such surtax paid on materials necessary for the completion

10  of the contract.  Any application for refund shall be made no

11  later than 15 months following initial imposition of the

12  surtax in that county.  The application for refund shall be in

13  the manner prescribed by the department by rule.  A complete

14  application shall include proof of the written contract and of

15  payment of the surtax.  The application shall contain a sworn

16  statement, signed by the applicant or its representative,

17  attesting to the validity of the application.  The department

18  shall, within 30 days after approval of a complete

19  application, certify to the county information necessary for

20  issuance of a refund to the applicant. Counties are hereby

21  authorized to issue refunds for this purpose and shall set

22  aside from the proceeds of the surtax a sum sufficient to pay

23  any refund lawfully due.  Any person who fraudulently obtains

24  or attempts to obtain a refund pursuant to this subparagraph,

25  in addition to being liable for repayment of any refund

26  fraudulently obtained plus a mandatory penalty of 100 percent

27  of the refund, is guilty of a felony of the third degree,

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

29  775.084.

30         4.  In the case of any vessel, railroad, or motor

31  vehicle common carrier entitled to partial exemption from tax


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                                   CS/HB 2415, First Engrossed/ntc



  1  imposed under this chapter pursuant to s. 212.08(4), (8), or

  2  (9), the basis for imposition of surtax shall be the same as

  3  provided in s. 212.08 and the ratio shall be applied each

  4  month to total purchases in this state of property qualified

  5  for proration which is delivered or sold in the taxing county

  6  to establish the portion used and consumed in intracounty

  7  movement and subject to surtax.

  8         Section 48.  Effective January 1, 2002, and applicable

  9  to communications services reflected on bills dated on or

10  after that date, paragraph (e) of subsection (1) of section

11  212.05, Florida Statutes, as amended by this act, is amended

12  to read:

13         212.05  Sales, storage, use tax.--It is hereby declared

14  to be the legislative intent that every person is exercising a

15  taxable privilege who engages in the business of selling

16  tangible personal property at retail in this state, including

17  the business of making mail order sales, or who rents or

18  furnishes any of the things or services taxable under this

19  chapter, or who stores for use or consumption in this state

20  any item or article of tangible personal property as defined

21  herein and who leases or rents such property within the state.

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

23  levied on each taxable transaction or incident, which tax is

24  due and payable as follows:

25         (e)1.  At the rate of 6 percent on charges for:

26         a.  Prepaid calling arrangements. All telegraph

27  messages and long-distance telephone calls beginning and

28  terminating in this state, telecommunication service as

29  defined in s. 203.012, and those services described in s.

30  203.012(2)(a), except that the tax rate for charges for

31  telecommunication service other than charges for prepaid


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                                   CS/HB 2415, First Engrossed/ntc



  1  calling arrangements is 7 percent. The tax on charges for

  2  prepaid calling arrangements shall be collected at the time of

  3  sale and remitted by the selling dealer.

  4         (I)  "Prepaid calling arrangement" means the separately

  5  stated retail sale by advance payment of communications

  6  services that consist exclusively of telephone calls

  7  originated by using an access number, authorization code, or

  8  other means that may be manually, electronically, or otherwise

  9  entered and that are sold in predetermined units or dollars

10  whose number declines with use in a known amount.

11         (II)  If the sale or recharge of the prepaid calling

12  arrangement does not take place at the dealer's place of

13  business, it shall be deemed to take place at the customer's

14  shipping address or, if no item is shipped, at the customer's

15  address or the location associated with the customer's mobile

16  telephone number.

17         (III)  The sale or recharge of a prepaid calling

18  arrangement shall be treated as a sale of tangible personal

19  property for purposes of this chapter, whether or not a

20  tangible item evidencing such arrangement is furnished to the

21  purchaser, and such sale within this state subjects the

22  selling dealer to the jurisdiction of this state for purposes

23  of this subsection. Notwithstanding any other provision of

24  this sub-sub-subparagraph, the sale of telecommunication

25  services to a person who furnishes telecommunication services

26  pursuant to a prepaid calling arrangement is deemed a sale for

27  resale, and a dealer selling telecommunication services to

28  such a person shall accept a resale certificate in lieu of the

29  tax, in accordance with rules of the department.

30         b.  Any television system program service.

31


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                                   CS/HB 2415, First Engrossed/ntc



  1         b.c.  The installation of telecommunication and

  2  telegraphic equipment.

  3         c.d.  Electrical power or energy, except that the tax

  4  rate for charges for electrical power or energy is 7 percent.

  5         2.  For purposes of this chapter, "television system

  6  program service" means the transmitting, by any means, of any

  7  audio or video signal to a subscriber for other than

  8  retransmission, or the installing, connecting, reconnecting,

  9  disconnecting, moving, or changing of any equipment related to

10  such service.  For purposes of this chapter, the term

11  "telecommunication service" does not include local service

12  provided through a pay telephone. The provisions of s.

13  212.17(3), regarding credit for tax paid on charges

14  subsequently found to be worthless, shall be equally

15  applicable to any tax paid under the provisions of this

16  section on charges for prepaid calling arrangements,

17  telecommunication or telegraph services, or electric power

18  subsequently found to be uncollectible. The word "charges" in

19  this paragraph does not include any excise or similar tax

20  levied by the Federal Government, any political subdivision of

21  the state, or any municipality upon the purchase, sale, or

22  recharge of prepaid calling arrangements or upon the purchase

23  or sale of telecommunication, television system program, or

24  telegraph service or electric power, which tax is collected by

25  the seller from the purchaser.

26         3.  Telegraph messages and telecommunication services

27  which originate or terminate in this state, other than

28  interstate private communication services, and are billed to a

29  customer, telephone number, or device located within this

30  state are taxable under this paragraph.  Interstate private

31


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                                   CS/HB 2415, First Engrossed/ntc



  1  communication services are taxable under this paragraph as

  2  follows:

  3         a.  One hundred percent of the charge imposed at each

  4  channel termination point within this state;

  5         b.  One hundred percent of the charge imposed for the

  6  total channel mileage between each channel termination point

  7  within this state; and

  8         c.  The portion of the interstate interoffice channel

  9  mileage charge as determined by multiplying said charge times

10  a fraction, the numerator of which is the air miles between

11  the last channel termination point in this state and the

12  vertical and horizontal coordinates, 7856 and 1756,

13  respectively, and the denominator of which is the air miles

14  between the last channel termination point in this state and

15  the first channel termination point outside this state.  The

16  denominator of this fraction shall be adjusted, if necessary,

17  by adding the numerator of said fraction to similarly

18  determined air miles in the state in which the other channel

19  termination point is located, so that the summation of the

20  apportionment factor for this state and the apportionment

21  factor for the other state is not greater than one, to ensure

22  that no more than 100 percent of the interstate interoffice

23  channel mileage charge can be taxed by this state and another

24  state.

25         4.  The tax imposed pursuant to this paragraph shall

26  not exceed $50,000 per calendar year on charges to any person

27  for interstate telecommunications services defined in s.

28  203.012(4) and (7)(b), if the majority of such services used

29  by such person are for communications originating outside of

30  this state and terminating in this state.  This exemption

31  shall only be granted to holders of a direct pay permit issued


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                                   CS/HB 2415, First Engrossed/ntc



  1  pursuant to this subparagraph.  No refunds shall be given for

  2  taxes paid prior to receiving a direct pay permit. Upon

  3  application, the department may issue a direct pay permit to

  4  the purchaser of telecommunications services authorizing such

  5  purchaser to pay tax on such services directly to the

  6  department. Any vendor furnishing telecommunications services

  7  to the holder of a valid direct pay permit shall be relieved

  8  of the obligation to collect and remit the tax on such

  9  service. Tax payments and returns pursuant to a direct pay

10  permit shall be monthly. For purposes of this subparagraph,

11  the term "person" shall be limited to a single legal entity

12  and shall not be construed as meaning a group or combination

13  of affiliated entities or entities controlled by one person or

14  group of persons.

15         5.  If the sale of a television system program service,

16  as defined in this paragraph, also involves the sale of an

17  item exempt under s. 212.08(7)(j), the tax shall be applied to

18  the value of the taxable service when it is sold separately.

19  If the company does not offer this service separately, the

20  consideration paid shall be separately identified and stated

21  with respect to the taxable and exempt portions of the

22  transaction as a condition of the exemption, except that the

23  amount identified as taxable shall not be less than the cost

24  of the service.

25         Section 49.  Effective January 1, 2002, and applicable

26  to communications services reflected on bills dated on or

27  after such date, paragraph (b) of subsection (2) and paragraph

28  (c) of subsection (3) of section 212.054, Florida Statutes, as

29  amended by this act, are amended to read:

30         212.054  Discretionary sales surtax; limitations,

31  administration, and collection.--


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                                   CS/HB 2415, First Engrossed/ntc



  1         (2)

  2         (b)  However:

  3         1.  The sales amount above $5,000 on any item of

  4  tangible personal property and on long-distance telephone

  5  service shall not be subject to the surtax. However, charges

  6  for prepaid calling arrangements, as defined in s.

  7  212.05(1)(e)1.a., shall be subject to the surtax. For purposes

  8  of administering the $5,000 limitation on an item of tangible

  9  personal property, if two or more taxable items of tangible

10  personal property are sold to the same purchaser at the same

11  time and, under generally accepted business practice or

12  industry standards or usage, are normally sold in bulk or are

13  items that, when assembled, comprise a working unit or part of

14  a working unit, such items must be considered a single item

15  for purposes of the $5,000 limitation when supported by a

16  charge ticket, sales slip, invoice, or other tangible evidence

17  of a single sale or rental. The limitation provided in this

18  subparagraph does not apply to the sale of any other service.

19         2.  In the case of utility, telecommunication, or

20  television system program services billed on or after the

21  effective date of any such surtax, the entire amount of the

22  charge for utility, telecommunication, or television system

23  program services shall be subject to the surtax. In the case

24  of utility, telecommunication, or television system program

25  services billed after the last day the surtax is in effect,

26  the entire amount of the charge on said items shall not be

27  subject to the surtax. "Utility service," as used in this

28  section, does not include any communications services as

29  defined in chapter 202.

30         3.  In the case of written contracts which are signed

31  prior to the effective date of any such surtax for the


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                                   CS/HB 2415, First Engrossed/ntc



  1  construction of improvements to real property or for

  2  remodeling of existing structures, the surtax shall be paid by

  3  the contractor responsible for the performance of the

  4  contract.  However, the contractor may apply for one refund of

  5  any such surtax paid on materials necessary for the completion

  6  of the contract.  Any application for refund shall be made no

  7  later than 15 months following initial imposition of the

  8  surtax in that county.  The application for refund shall be in

  9  the manner prescribed by the department by rule.  A complete

10  application shall include proof of the written contract and of

11  payment of the surtax.  The application shall contain a sworn

12  statement, signed by the applicant or its representative,

13  attesting to the validity of the application.  The department

14  shall, within 30 days after approval of a complete

15  application, certify to the county information necessary for

16  issuance of a refund to the applicant. Counties are hereby

17  authorized to issue refunds for this purpose and shall set

18  aside from the proceeds of the surtax a sum sufficient to pay

19  any refund lawfully due.  Any person who fraudulently obtains

20  or attempts to obtain a refund pursuant to this subparagraph,

21  in addition to being liable for repayment of any refund

22  fraudulently obtained plus a mandatory penalty of 100 percent

23  of the refund, is guilty of a felony of the third degree,

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

25  775.084.

26         4.  In the case of any vessel, railroad, or motor

27  vehicle common carrier entitled to partial exemption from tax

28  imposed under this chapter pursuant to s. 212.08(4), (8), or

29  (9), the basis for imposition of surtax shall be the same as

30  provided in s. 212.08 and the ratio shall be applied each

31  month to total purchases in this state of property qualified


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                                   CS/HB 2415, First Engrossed/ntc



  1  for proration which is delivered or sold in the taxing county

  2  to establish the portion used and consumed in intracounty

  3  movement and subject to surtax.

  4         (3)  For the purpose of this section, a transaction

  5  shall be deemed to have occurred in a county imposing the

  6  surtax when:

  7         (c)  The consumer of utility or television system

  8  program services is located in the county, or the

  9  telecommunication services are provided to a location within

10  the county.

11         Section 50.  Effective January 1, 2001, section

12  337.401, Florida Statutes, is amended to read:

13         337.401  Use of right-of-way for utilities subject to

14  regulation; permit; fees.--

15         (1)  The department and local governmental entities,

16  referred to in ss. 337.401-337.404 as the "authority," that

17  have jurisdiction and control of public roads or publicly

18  owned rail corridors are authorized to prescribe and enforce

19  reasonable rules or regulations with reference to the placing

20  and maintaining along, across, or on any road or publicly

21  owned rail corridors under their respective jurisdictions any

22  electric transmission, telephone, or telegraph lines; pole

23  lines; poles; railways; ditches; sewers; water, heat, or gas

24  mains; pipelines; fences; gasoline tanks and pumps; or other

25  structures hereinafter referred to as the "utility."

26         (2)  The authority may grant to any person who is a

27  resident of this state, or to any corporation which is

28  organized under the laws of this state or licensed to do

29  business within this state, the use of a right-of-way for the

30  utility in accordance with such rules or regulations as the

31  authority may adopt.  No utility shall be installed, located,


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                                   CS/HB 2415, First Engrossed/ntc



  1  or relocated unless authorized by a written permit issued by

  2  the authority.  The permit shall require the permitholder to

  3  be responsible for any damage resulting from the issuance of

  4  such permit.  The authority may initiate injunctive

  5  proceedings as provided in s. 120.69 to enforce provisions of

  6  this subsection or any rule or order issued or entered into

  7  pursuant thereto.

  8         (3)(a)  Because federal and state law require the

  9  nondiscriminatory treatment of providers of telecommunications

10  services and because of the desire to promote competition

11  among providers of telecommunications services, it is the

12  intent of the Legislature that municipalities and counties

13  treat telecommunications companies in a nondiscriminatory and

14  competitively neutral manner when imposing rules or

15  regulations governing the placement or maintenance of

16  telecommunications facilities in the public roads or

17  rights-of-way. Rules or regulations imposed by a municipality

18  or county relating to telecommunications companies placing or

19  maintaining telecommunications facilities in its roads or

20  rights-of-way must be generally applicable to all

21  telecommunications companies and, notwithstanding any other

22  law, may not require a telecommunications company to apply for

23  or enter into an individual license, franchise, or other

24  agreement with the municipality or county as a condition of

25  placing or maintaining telecommunications facilities in its

26  roads or rights-of-way. In addition to other reasonable rules

27  or regulations that a municipality or county may adopt

28  relating to the placement or maintenance of telecommunications

29  facilities in its roads or rights-of-way under this

30  subsection, a municipality or county may require a

31  telecommunications company that places or seeks to place


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                                   CS/HB 2415, First Engrossed/ntc



  1  facilities in its roads or rights-of-way to register with the

  2  municipality or county and to provide the name of the

  3  registrant; the name, address, and telephone number of a

  4  contact person for the registrant; the number of the

  5  registrant's current certificate of authorization issued by

  6  the Florida Public Service Commission or the Federal

  7  Communications Commission; and proof of insurance or

  8  self-insuring status adequate to defend and cover claims.

  9         (b)  Each municipality and county retains the authority

10  to regulate and manage municipal and county roads or

11  rights-of-way in exercising its police power. Any rules or

12  regulations adopted by a municipality or county which govern

13  the occupation of its roads or rights-of-way by

14  telecommunications companies must be related to the placement

15  or maintenance of facilities in such roads or rights-of-way,

16  must be reasonable and nondiscriminatory, and may include only

17  those matters necessary to manage the roads or rights-of-way

18  of the municipality or county.

19         (c)1.  It is the intention of the state to treat all

20  providers of communications services that use or occupy

21  municipal or charter county roads or rights-of-way for the

22  provision of communications services in a nondiscriminatory

23  and competitively neutral manner with respect to the payment

24  of permit fees. Certain providers of communications services

25  have been granted by general law the authority to offset

26  permit fees against franchise or other fees while other

27  providers of communications services have not been granted

28  this authority. In order to treat all providers of

29  communications services in a nondiscriminatory and

30  competitively neutral manner with respect to the payment of

31  permit fees, each municipality and charter county shall make


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                                   CS/HB 2415, First Engrossed/ntc



  1  an election under either sub-subparagraph a. or

  2  sub-subparagraph b. and must inform the Department of Revenue

  3  of the election by certified mail by October 1, 2001. Such

  4  election take effect January 1, 2002.

  5         a.(I)  The municipality or charter county may require

  6  and collect permit fees from any providers of communications

  7  services that use or occupy municipal or county roads or

  8  rights-of-way. All fees permitted under this sub-subparagraph

  9  must be reasonable and commensurate with the direct and actual

10  cost of the regulatory activity, including issuing and

11  processing permits, plan reviews, physical inspection, and

12  direct administrative costs; must be demonstrable; and must be

13  equitable among users of the roads or rights-of-way. A fee

14  permitted under this sub-subparagraph may not: be offset

15  against the tax imposed under chapter 202; include the costs

16  of roads or rights-of-way acquisition or roads or

17  rights-of-way rental; include any general administrative,

18  management, or maintenance costs of the roads or

19  rights-of-way; or be based on a percentage of the value or

20  costs associated with the work to be performed on the roads or

21  rights-of-way. In an action to recover amounts due for a fee

22  not permitted under this sub-subparagraph, the prevailing

23  party may recover court costs and attorney's fees at trial and

24  on appeal. In addition to the limitations set forth in this

25  section, a fee levied by a municipality or charter county

26  under this sub-subparagraph may not exceed $100. However,

27  permit fees may not be imposed with respect to permits that

28  may be required for service drop lines not required to be

29  noticed under s. 556.108(5)(b) or for any activity that does

30  not require the physical disturbance of the roads or

31


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                                   CS/HB 2415, First Engrossed/ntc



  1  rights-of-way or does not impair access to or full use of the

  2  roads or rights-of-way.

  3         (II)  To ensure competitive neutrality among providers

  4  of communications services, for any municipality or charter

  5  county that elects to exercise its authority to require and

  6  collect permit fees under this sub-subparagraph, the rate of

  7  the local communications services tax imposed by such

  8  jurisdiction, as computed under s. 202.20(1) and (2), shall

  9  automatically be reduced by a rate of 0.12 percent.

10         b.  Alternatively, the municipality or charter county

11  may elect not to require and collect permit fees from any

12  provider of communications services that uses or occupies

13  municipal or charter county roads or rights-of-way for the

14  provision of communications services; however, each

15  municipality or charter county that elects to operate under

16  this sub-subparagraph retains all authority to establish rules

17  and regulations for providers of communications services to

18  use or occupy roads or rights-of-way as provided in this

19  section. If a municipality or charter county elects to operate

20  under this sub-subparagraph, the total rate for the local

21  communications services tax as computed under s. 202.20(1) and

22  (2) for that municipality or charter county may be increased

23  by ordinance by an amount not to exceed a rate of 0.12

24  percent.

25         c.  A municipality or charter county that does not make

26  an election as provided for in this subparagraph shall be

27  presumed to have elected to operate under the provisions of

28  sub-subparagraph b.

29         2.  Each noncharter county shall make an election under

30  either sub-subparagraph a. or sub-subparagraph b. and shall

31  inform the Department of Revenue of the election by certified


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                                   CS/HB 2415, First Engrossed/ntc



  1  mail by October 1, 2001. Such election shall take effect

  2  January 1, 2002.

  3         a.  The noncharter county may elect to require and

  4  collect permit fees from any providers of communications

  5  services that use or occupy noncharter county roads or

  6  rights-of-way. All fees permitted under this sub-subparagraph

  7  must be reasonable and commensurate with the direct and actual

  8  cost of the regulatory activity, including issuing and

  9  processing permits, plan reviews, physical inspection, and

10  direct administrative costs; must be demonstrable; and must be

11  equitable among users of the roads or rights-of-way. A fee

12  permitted under this sub-subparagraph may not: be offset

13  against the tax imposed under chapter 202; include the costs

14  of roads or rights-of-way acquisition or roads or

15  rights-of-way rental; include any general administrative,

16  management, or maintenance costs of the roads or

17  rights-of-way; or be based on a percentage of the value or

18  costs associated with the work to be performed on the roads or

19  rights-of-way. In an action to recover amounts due for a fee

20  not permitted under this sub-subparagraph, the prevailing

21  party may recover court costs and attorney's fees at trial and

22  on appeal. In addition to the limitations set forth in this

23  section, a fee levied by a noncharter county under this

24  sub-subparagraph may not exceed $100. However, permit fees may

25  not be imposed with respect to permits that may be required

26  for service drop lines not required to be noticed under s.

27  556.108(5)(b) or for any activity that does not require the

28  physical disturbance of the roads or rights-of-way or does not

29  impair access to or full use of the roads or rights-of-way.

30         b.  Alternatively, the noncharter county may elect not

31  to require and collect permit fees from any provider of


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                                   CS/HB 2415, First Engrossed/ntc



  1  communications services that uses or occupies noncharter

  2  county roads or rights-of-way for the provision of

  3  communications services; however, each noncharter county that

  4  elects to operate under this sub-subparagraph shall retain all

  5  authority to establish rules and regulations for providers of

  6  communications services to use or occupy roads or

  7  rights-of-way as provided in this section. If a noncharter

  8  county elects to operate under this sub-subparagraph, the

  9  total rate for the local communications services tax as

10  computed under s. 202.20(1) and (2) for that noncharter county

11  may be increased by ordinance by an amount not to exceed a

12  rate of 0.24 percent, to replace the revenue the noncharter

13  county would otherwise have received from permit fees for

14  providers of communications services.

15         c.  A noncharter county that does not make an election

16  as provided for in this subparagraph shall be presumed to have

17  elected to operate under the provisions of sub-subparagraph b.

18         3.  Except as provided in this paragraph,

19  municipalities and counties retain all existing authority to

20  require and collect permit fees from users or occupants of

21  municipal or county roads or rights-of-way and to set

22  appropriate permit fee amounts.

23         (d)  After January 1, 2001, in addition to any other

24  notice requirements, a municipality must provide to the

25  Secretary of State, at least 10 days prior to consideration on

26  first reading, notice of a proposed ordinance governing a

27  telecommunications company placing or maintaining

28  telecommunications facilities in its roads or rights-of-way.

29  After January 1, 2001, in addition to any other notice

30  requirements, a county must provide to the Secretary of State,

31  at least 15 days prior to consideration at a public hearing,


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                                   CS/HB 2415, First Engrossed/ntc



  1  notice of a proposed ordinance governing a telecommunications

  2  company placing or maintaining telecommunications facilities

  3  in its roads or rights-of-way. The notice required by this

  4  paragraph must be published by the Secretary of State on a

  5  designated Internet website. The failure of a municipality or

  6  county to provide such notice does not render the ordinance

  7  invalid.

  8         (e)  If any municipality requires any

  9  telecommunications company to pay a fee or other consideration

10  as a condition for granting permission to occupy municipal

11  streets and rights-of-way for poles, wires, and other

12  fixtures, such fee or consideration may not exceed 1 percent

13  of the gross receipts on recurring local service revenues for

14  services provided within the corporate limits of the

15  municipality by such telecommunications company. Included

16  within such 1-percent maximum fee or consideration are all

17  taxes, licenses, fees, in-kind contributions accepted pursuant

18  to paragraph (g) subsection (5), and other impositions except

19  ad valorem taxes and amounts for assessments for special

20  benefits, such as sidewalks, street pavings, and similar

21  improvements, and occupational license taxes levied or imposed

22  by a municipality upon the telecommunications company.  This

23  paragraph subsection shall not impair any franchise in

24  existence on July 1, 1985.

25         (f)(4)  A municipality may require by ordinance enter

26  into an agreement with any person providing telecommunication

27  services defined in s. 203.012(7) as a condition for granting

28  permission to occupy or use any city street, alley, viaduct,

29  elevated roadway, bridge, or other public way to pay. The

30  agreement shall permit the telecommunication service provider

31  to construct, operate, maintain, repair, rebuild, or replace a


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                                   CS/HB 2415, First Engrossed/ntc



  1  telecommunications route within a municipal right-of-way.  The

  2  agreement shall provide for a fee or other consideration

  3  payable annually based on actual linear feet of any cable,

  4  fiber optic, or other pathway that makes physical use of the

  5  municipal right-of-way.  In no event shall the fee or other

  6  consideration imposed pursuant to this paragraph subsection be

  7  less than $500 per linear mile of any cable, fiber optic, or

  8  other pathway that makes physical use of the municipal

  9  right-of-way.  Any fee or other consideration imposed by this

10  paragraph subsection in excess of $500 shall be applied in a

11  nondiscriminatory manner and shall not exceed the sum of:

12         1.(a)  Costs directly related to the inconvenience or

13  impairment solely caused by the disturbance of the municipal

14  right-of-way; and

15         2.(b)  The reasonable cost of the regulatory activity

16  of the municipality; and.

17         3.(c)  The proportionate share of cost of land for such

18  street, alley, or other public way attributable to utilization

19  of the right-of-way by a telecommunication service provider.

20

21  Furthermore, no telecommunication service provider shall be

22  required to pay more than one such fee or other consideration

23  annually for the construction, maintenance, operation, repair,

24  rebuilding, or replacement of a parallel telecommunications

25  route owned by it, or by a subsidiary under its direct

26  control, which makes use of the right-of-way of any

27  municipality enacting an ordinance pursuant to this paragraph

28  subsection.  The fee or other consideration imposed pursuant

29  to this paragraph subsection shall not apply in any manner to

30  any telecommunication service provider who provides

31  telecommunication services as defined in s. 203.012(3) for any


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  1  services provided by such service provider.  Any agreement

  2  entered into pursuant to the authority of this paragraph

  3  subsection prior to June 3, 1988, and the fees or fee schedule

  4  in effect on that date shall remain in full force and effect

  5  until such agreement expires. Any ordinance enacted pursuant

  6  to this paragraph subsection prior to June 3, 1988, and the

  7  fees or fee schedule in effect on that date shall remain in

  8  full force and effect unless the ordinance is repealed by the

  9  municipality. Notwithstanding the language contained herein a

10  municipality may reenact any ordinance which has an automatic

11  expiration date provided the ordinance does not increase the

12  fees in effect in said ordinance in violation of this section.

13         (g)(5)  Except as expressly allowed or authorized by

14  general law and except for the rights-of-way permit fees

15  subject to paragraph (e) subsection (3), a municipality may

16  not levy on a telecommunications company a tax, fee, or other

17  charge for operating as a telecommunications company within

18  the jurisdiction of the municipality or which is in any way

19  related to using its roads or rights-of-way.  A municipality

20  may not allow a telecommunications company to pay a fee or

21  provide compensation in excess of the limits prescribed in

22  this section.  A municipality may not require or solicit

23  in-kind compensation in lieu of any fees imposed pursuant to

24  this section.  Nothing in this paragraph subsection shall

25  impair any ordinance or agreement in effect on May 22, 1998,

26  the effective date of this act which provides for or allows

27  in-kind compensation by a telecommunications company.

28         (h)(6)  A local governmental entity may not use its

29  authority over the placement of facilities in its roads and

30  rights-of-way as a basis for asserting or exercising

31  regulatory control over a telecommunications company regarding


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                                   CS/HB 2415, First Engrossed/ntc



  1  matters within the exclusive jurisdiction of the Florida

  2  Public Service Commission or the Federal Communications

  3  Commission, including, but not limited to, the operations,

  4  systems, qualifications, services, service quality, service

  5  territory, and prices of a telecommunications company.

  6         (i)(7)  A telecommunications company that has obtained

  7  permission to occupy the roads and rights-of-way of an

  8  incorporated municipality pursuant to s. 362.01 city or town

  9  or that is otherwise lawfully occupying the roads or

10  rights-of-way of a municipality on the effective date of this

11  act shall not be required to obtain additional consent to

12  continue such lawful occupation of those roads or

13  rights-of-way; however, nothing in this paragraph subsection

14  shall be interpreted to limit the power of a municipality to

15  impose a fee or adopt or enforce reasonable rules or

16  regulations as provided in this section.

17         (j)(8)  Except as expressly provided in this section,

18  this section does not modify the authority of local

19  governmental entities to levy the tax authorized in s. 166.231

20  or the duties of telecommunications companies under ss.

21  337.402-337.404.  This section does not apply to building

22  permits, pole attachments, or private roads, private

23  easements, and private rights-of-way. Except as expressly

24  provided in this section, this section does not limit or

25  expand whatever powers counties may have relating to roads and

26  rights-of-way. Nothing in this section shall limit or expand

27  whatever authority a local government may have to impose any

28  fee pursuant to 47 U.S.C. ss. 542 and 573.

29         (k)(9)  As used in this section, "telecommunications

30  company" has the same meaning as defined in s. 364.02.

31


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                                   CS/HB 2415, First Engrossed/ntc



  1         (4)(10)  This section, except subsections (1) and, (2),

  2  and paragraph (3)(h) (6), does not apply to the provision of

  3  pay telephone service on public or municipal roads or

  4  rights-of-way.

  5         Section 51.  Effective January 1, 2002, section

  6  337.401, Florida Statutes, as amended by this act, is amended

  7  to read:

  8         337.401  Use of right-of-way for utilities subject to

  9  regulation; permit; fees.--

10         (1)  The department and local governmental entities,

11  referred to in ss. 337.401-337.404 as the "authority," that

12  have jurisdiction and control of public roads or publicly

13  owned rail corridors are authorized to prescribe and enforce

14  reasonable rules or regulations with reference to the placing

15  and maintaining along, across, or on any road or publicly

16  owned rail corridors under their respective jurisdictions any

17  electric transmission, telephone, or telegraph, or other

18  communications services lines; pole lines; poles; railways;

19  ditches; sewers; water, heat, or gas mains; pipelines; fences;

20  gasoline tanks and pumps; or other structures hereinafter

21  referred to as the "utility."

22         (2)  The authority may grant to any person who is a

23  resident of this state, or to any corporation which is

24  organized under the laws of this state or licensed to do

25  business within this state, the use of a right-of-way for the

26  utility in accordance with such rules or regulations as the

27  authority may adopt.  No utility shall be installed, located,

28  or relocated unless authorized by a written permit issued by

29  the authority.  The permit shall require the permitholder to

30  be responsible for any damage resulting from the issuance of

31  such permit.  The authority may initiate injunctive


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  1  proceedings as provided in s. 120.69 to enforce provisions of

  2  this subsection or any rule or order issued or entered into

  3  pursuant thereto.

  4         (3)(a)  Because of the unique circumstances applicable

  5  to providers of communications services, including, but not

  6  limited to, the circumstances described in paragraph (e) and

  7  the fact that federal and state law require the

  8  nondiscriminatory treatment of providers of telecommunications

  9  services, and because of the desire to promote competition

10  among providers of communications telecommunications services,

11  it is the intent of the Legislature that municipalities and

12  counties treat providers of communications services

13  telecommunications companies in a nondiscriminatory and

14  competitively neutral manner when imposing rules or

15  regulations governing the placement or maintenance of

16  communications telecommunications facilities in the public

17  roads or rights-of-way. Rules or regulations imposed by a

18  municipality or county relating to providers of communications

19  services telecommunications companies placing or maintaining

20  communications telecommunications facilities in its roads or

21  rights-of-way must be generally applicable to all providers of

22  communications services telecommunications companies and,

23  notwithstanding any other law, may not require a provider of

24  communications services, except as otherwise provided in

25  paragraph (f), telecommunications company to apply for or

26  enter into an individual license, franchise, or other

27  agreement with the municipality or county as a condition of

28  placing or maintaining communications telecommunications

29  facilities in its roads or rights-of-way. In addition to other

30  reasonable rules or regulations that a municipality or county

31  may adopt relating to the placement or maintenance of


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                                   CS/HB 2415, First Engrossed/ntc



  1  communications telecommunications facilities in its roads or

  2  rights-of-way under this subsection, a municipality or county

  3  may require a provider of communications services

  4  telecommunications company that places or seeks to place

  5  facilities in its roads or rights-of-way to register with the

  6  municipality or county and to provide the name of the

  7  registrant; the name, address, and telephone number of a

  8  contact person for the registrant; the number of the

  9  registrant's current certificate of authorization issued by

10  the Florida Public Service Commission or the Federal

11  Communications Commission; and proof of insurance or

12  self-insuring status adequate to defend and cover claims.

13         (b)  Each municipality and county retains the authority

14  to regulate and manage municipal and county roads or

15  rights-of-way in exercising its police power. Any rules or

16  regulations adopted by a municipality or county which govern

17  the occupation of its roads or rights-of-way by providers of

18  communications services telecommunications companies must be

19  related to the placement or maintenance of facilities in such

20  roads or rights-of-way, must be reasonable and

21  nondiscriminatory, and may include only those matters

22  necessary to manage the roads or rights-of-way of the

23  municipality or county.

24         (c)1.  It is the intention of the state to treat all

25  providers of communications services that use or occupy

26  municipal or charter county roads or rights-of-way for the

27  provision of communications services in a nondiscriminatory

28  and competitively neutral manner with respect to the payment

29  of permit fees. Certain providers of communications services

30  have been granted by general law the authority to offset

31  permit fees against franchise or other fees while other


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                                   CS/HB 2415, First Engrossed/ntc



  1  providers of communications services have not been granted

  2  this authority. In order to treat all providers of

  3  communications services in a nondiscriminatory and

  4  competitively neutral manner with respect to the payment of

  5  permit fees, each municipality and charter county shall make

  6  an election under either sub-subparagraph a. or

  7  sub-subparagraph b. and must inform the Department of Revenue

  8  of the election by certified mail by October 1, 2001. Such

  9  election shall take effect January 1, 2002.

10         a.(I)  The municipality or charter county may require

11  and collect permit fees from any providers of communications

12  services that use or occupy municipal or county roads or

13  rights-of-way. All fees permitted under this sub-subparagraph

14  must be reasonable and commensurate with the direct and actual

15  cost of the regulatory activity, including issuing and

16  processing permits, plan reviews, physical inspection, and

17  direct administrative costs; must be demonstrable; and must be

18  equitable among users of the roads or rights-of-way. A fee

19  permitted under this sub-subparagraph may not: be offset

20  against the tax imposed under chapter 202; include the costs

21  of roads or rights-of-way acquisition or roads or

22  rights-of-way rental; include any general administrative,

23  management, or maintenance costs of the roads or

24  rights-of-way; or be based on a percentage of the value or

25  costs associated with the work to be performed on the roads or

26  rights-of-way. In an action to recover amounts due for a fee

27  not permitted under this sub-subparagraph, the prevailing

28  party may recover court costs and attorney's fees at trial and

29  on appeal. In addition to the limitations set forth in this

30  section, a fee levied by a municipality or charter county

31  under this sub-subparagraph may not exceed $100. However,


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                                   CS/HB 2415, First Engrossed/ntc



  1  permit fees may not be imposed with respect to permits that

  2  may be required for service drop lines not required to be

  3  noticed under s. 556.108(5)(b) or for any activity that does

  4  not require the physical disturbance of the roads or

  5  rights-of-way or does not impair access to or full use of the

  6  roads or rights-of-way.

  7         (II)  To ensure competitive neutrality among providers

  8  of communications services, for any municipality or charter

  9  county that elects to exercise its authority to require and

10  collect permit fees under this sub-subparagraph, the rate of

11  the local communications services tax imposed by such

12  jurisdiction, as computed under s. 202.20(1) and (2), shall

13  automatically be reduced by a rate of 0.12 percent.

14         b.  Alternatively, the municipality or charter county

15  may elect not to require and collect permit fees from any

16  provider of communications services that uses or occupies

17  municipal or charter county roads or rights-of-way for the

18  provision of communications services; however, each

19  municipality or charter county that elects to operate under

20  this sub-subparagraph retains all authority to establish rules

21  and regulations for providers of communications services to

22  use or occupy roads or rights-of-way as provided in this

23  section. If a municipality or charter county elects to operate

24  under this sub-subparagraph, the total rate for the local

25  communications services tax as computed under s. 202.20(1) and

26  (2) for that municipality or charter county may be increased

27  by ordinance by an amount not to exceed a rate of 0.12

28  percent.

29         c.  A municipality or charter county that does not make

30  an election as provided for in this subparagraph shall be

31


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                                   CS/HB 2415, First Engrossed/ntc



  1  presumed to have elected to operate under the provisions of

  2  sub-subparagraph b.

  3         2.  Each noncharter county shall make an election under

  4  either sub-subparagraph a. or sub-subparagraph b. and shall

  5  inform the Department of Revenue of the election by certified

  6  mail by October 1, 2001. Such election shall take effect

  7  January 1, 2002.

  8         a.  The noncharter county may elect to require and

  9  collect permit fees from any providers of communications

10  services that use or occupy noncharter county roads or

11  rights-of-way. All fees permitted under this sub-subparagraph

12  must be reasonable and commensurate with the direct and actual

13  cost of the regulatory activity, including issuing and

14  processing permits, plan reviews, physical inspection, and

15  direct administrative costs; must be demonstrable; and must be

16  equitable among users of the roads or rights-of-way. A fee

17  permitted under this sub-subparagraph may not: be offset

18  against the tax imposed under chapter 202; include the costs

19  of roads or rights-of-way acquisition or roads or

20  rights-of-way rental; include any general administrative,

21  management, or maintenance costs of the roads or

22  rights-of-way; or be based on a percentage of the value or

23  costs associated with the work to be performed on the roads or

24  rights-of-way. In an action to recover amounts due for a fee

25  not permitted under this sub-subparagraph, the prevailing

26  party may recover court costs and attorney's fees at trial and

27  on appeal. In addition to the limitations set forth in this

28  section, a fee levied by a noncharter county under this

29  sub-subparagraph may not exceed $100. However, permit fees may

30  not be imposed with respect to permits that may be required

31  for service drop lines not required to be noticed under s.


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                                   CS/HB 2415, First Engrossed/ntc



  1  556.108(5)(b) or for any activity that does not require the

  2  physical disturbance of the roads or rights-of-way or does not

  3  impair access to or full use of the roads or rights-of-way.

  4         b.  Alternatively, the noncharter county may elect not

  5  to require and collect permit fees from any provider of

  6  communications services that uses or occupies noncharter

  7  county roads or rights-of-way for the provision of

  8  communications services; however, each noncharter county that

  9  elects to operate under this sub-subparagraph shall retain all

10  authority to establish rules and regulations for providers of

11  communications services to use or occupy roads or

12  rights-of-way as provided in this section. If a noncharter

13  county elects to operate under this sub-subparagraph, the

14  total rate for the local communications services tax as

15  computed under s. 202.20(1) and (2) for that noncharter county

16  may be increased by ordinance by an amount not to exceed a

17  rate of 0.24 percent, to replace the revenue the noncharter

18  county would otherwise have received from permit fees for

19  providers of communications services.

20         c.  A noncharter county that does not make an election

21  as provided for in this subparagraph shall be presumed to have

22  elected to operate under the provisions of sub-subparagraph b.

23         3.  Except as provided in this paragraph,

24  municipalities and counties retain all existing authority to

25  require and collect permit fees from users or occupants of

26  municipal or county roads or rights-of-way and to set

27  appropriate permit fee amounts.

28         (d)  After January 1, 2001, in addition to any other

29  notice requirements, a municipality must provide to the

30  Secretary of State, at least 10 days prior to consideration on

31  first reading, notice of a proposed ordinance governing a


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                                   CS/HB 2415, First Engrossed/ntc



  1  provider of communications services telecommunications company

  2  placing or maintaining communications telecommunications

  3  facilities in its roads or rights-of-way. After January 1,

  4  2001, in addition to any other notice requirements, a county

  5  must provide to the Secretary of State, at least 15 days prior

  6  to consideration at a public hearing, notice of a proposed

  7  ordinance governing a provider of communications services

  8  telecommunications company placing or maintaining

  9  communications telecommunications facilities in its roads or

10  rights-of-way. The notice required by this paragraph must be

11  published by the Secretary of State on a designated Internet

12  website. The failure of a municipality or county to provide

13  such notice does not render the ordinance invalid.

14         (e)  The authority of municipalities and counties to

15  require franchise fees from providers of communications

16  services, with respect to the provision of communications

17  services, is specifically preempted by the state, except as

18  otherwise provided in paragraph (f), because of unique

19  circumstances applicable to providers of communications

20  services when compared to other utilities occupying municipal

21  or county roads or rights-of-way. Providers of communications

22  services may provide similar services in a manner that

23  requires the placement of facilities in municipal or county

24  roads or rights-of-way or in a manner that does not require

25  the placement of facilities in such roads or rights-of-way.

26  Although similar communications services may be provided by

27  different means, the state desires to treat providers of

28  communications services in a nondiscriminatory manner and to

29  have the taxes, franchise fees, and other fees paid by

30  providers of communications services be competitively neutral.

31  Municipalities and counties retain all existing authority, if


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                                   CS/HB 2415, First Engrossed/ntc



  1  any, to collect franchise fees from users or occupants of

  2  municipal or county roads or rights-of-way other than

  3  providers of communications services, and the provisions of

  4  this subsection shall have no effect upon this authority. The

  5  provisions of this subsection do not restrict the authority,

  6  if any, of municipalities or counties or other governmental

  7  entities to receive reasonable rental fees based on fair

  8  market value for the use of public lands and buildings on

  9  property outside the public roads or rights-of-way for the

10  placement of communications antennas and towers.

11         (f)  A municipality or county may request and negotiate

12  for in-kind requirements, institutional networks, and

13  contributions for, or in support of, the use or construction

14  of public, educational, or governmental access facilities

15  allowed under federal law from providers of cable service, and

16  nothing in this section shall impair any ordinance or

17  agreement in effect on July 1, 2000, which provides for or

18  allows for such requirements, networks, or contributions,

19  including the ability of providers of cable service to recover

20  any such expenses pursuant to federal law.  This subsection

21  shall be reviewed by the Legislature during the 2001

22  legislative session in conjunction with the study required by

23  this act.

24         (g)  Each municipality and county retains authority to

25  negotiate all terms and conditions of a cable service

26  franchise allowed by federal and state law except those terms

27  and conditions related to franchise fees and the definition of

28  gross revenues or other definitions or methodologies related

29  to the payment or assessment of franchise fees on providers of

30  cable services.

31


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                                   CS/HB 2415, First Engrossed/ntc



  1         (e)  If any municipality requires any

  2  telecommunications company to pay a fee or other consideration

  3  as a condition for granting permission to occupy municipal

  4  streets and rights-of-way for poles, wires, and other

  5  fixtures, such fee or consideration may not exceed 1 percent

  6  of the gross receipts on recurring local service revenues for

  7  services provided within the corporate limits of the

  8  municipality by such telecommunications company. Included

  9  within such 1-percent maximum fee or consideration are all

10  taxes, licenses, fees, in-kind contributions accepted pursuant

11  to paragraph (g), and other impositions except ad valorem

12  taxes and amounts for assessments for special benefits, such

13  as sidewalks, street pavings, and similar improvements, and

14  occupational license taxes levied or imposed by a municipality

15  upon the telecommunications company.  This paragraph shall not

16  impair any franchise in existence on July 1, 1985.

17         (f)  A municipality may require any person providing

18  telecommunication services defined in s. 203.012(7) as a

19  condition for granting permission to occupy or use any city

20  street, alley, viaduct, elevated roadway, bridge, or other

21  public way to pay a fee or other consideration payable

22  annually based on actual linear feet of any cable, fiber

23  optic, or other pathway that makes physical use of the

24  municipal right-of-way.  In no event shall the fee or other

25  consideration imposed pursuant to this paragraph be less than

26  $500 per linear mile of any cable, fiber optic, or other

27  pathway that makes physical use of the municipal right-of-way.

28  Any fee or other consideration imposed by this paragraph in

29  excess of $500 shall be applied in a nondiscriminatory manner

30  and shall not exceed the sum of:

31


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                                   CS/HB 2415, First Engrossed/ntc



  1         1.  Costs directly related to the inconvenience or

  2  impairment solely caused by the disturbance of the municipal

  3  right-of-way;

  4         2.  The reasonable cost of the regulatory activity of

  5  the municipality; and

  6         3.  The proportionate share of cost of land for such

  7  street, alley, or other public way attributable to utilization

  8  of the right-of-way by a telecommunication service provider.

  9

10  Furthermore, no telecommunication service provider shall be

11  required to pay more than one such fee or other consideration

12  annually for the construction, maintenance, operation, repair,

13  rebuilding, or replacement of a parallel telecommunications

14  route owned by it, or by a subsidiary under its direct

15  control, which makes use of the right-of-way of any

16  municipality enacting an ordinance pursuant to this paragraph.

17  The fee or other consideration imposed pursuant to this

18  paragraph shall not apply in any manner to any

19  telecommunication service provider who provides

20  telecommunication services as defined in s. 203.012(3) for any

21  services provided by such service provider.  Any agreement

22  entered into pursuant to the authority of this paragraph prior

23  to June 3, 1988, and the fees or fee schedule in effect on

24  that date shall remain in full force and effect until such

25  agreement expires. Any ordinance enacted pursuant to this

26  paragraph prior to June 3, 1988, and the fees or fee schedule

27  in effect on that date shall remain in full force and effect

28  unless the ordinance is repealed by the municipality.

29  Notwithstanding the language contained herein a municipality

30  may reenact any ordinance which has an automatic expiration

31


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                                   CS/HB 2415, First Engrossed/ntc



  1  date provided the ordinance does not increase the fees in

  2  effect in said ordinance in violation of this section.

  3         (h)(g)  Except as expressly allowed or authorized by

  4  general law and except for the rights-of-way permit fees

  5  subject to paragraph (c) (e), a municipality or county may not

  6  levy on a provider of communications services

  7  telecommunications company a tax, fee, or other charge or

  8  imposition for operating as a provider of communications

  9  services telecommunications company within the jurisdiction of

10  the municipality or county which is in any way related to

11  using its roads or rights-of-way. A municipality may not allow

12  a telecommunications company to pay a fee or provide

13  compensation in excess of the limits prescribed in this

14  section. A municipality or county may not require or solicit

15  in-kind compensation, except as otherwise provided in

16  paragraph (f) in lieu of any fees imposed pursuant to this

17  section. Nothing in this paragraph shall impair any ordinance

18  or agreement in effect on May 22, 1998, or any voluntary

19  agreement entered into subsequent to that date, which provides

20  for or allows in-kind compensation by a telecommunications

21  company.

22         (i)(h)  A municipality or county local governmental

23  entity may not use its authority over the placement of

24  facilities in its roads and rights-of-way as a basis for

25  asserting or exercising regulatory control over a provider of

26  communications services telecommunications company regarding

27  matters within the exclusive jurisdiction of the Florida

28  Public Service Commission or the Federal Communications

29  Commission, including, but not limited to, the operations,

30  systems, qualifications, services, service quality, service

31


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                                   CS/HB 2415, First Engrossed/ntc



  1  territory, and prices of a provider of communications services

  2  telecommunications company.

  3         (j)(i)  A provider of communications services

  4  telecommunications company that has obtained permission to

  5  occupy the roads or and rights-of-way of an incorporated

  6  municipality pursuant to s. 362.01 or that is otherwise

  7  lawfully occupying the roads or rights-of-way of a

  8  municipality on the effective date of this act shall not be

  9  required to obtain consent to continue such lawful occupation

10  of those roads or rights-of-way; however, nothing in this

11  paragraph shall be interpreted to limit the power of a

12  municipality to impose a fee or adopt or enforce reasonable

13  rules or regulations as provided in this section.

14         (k)(j)  Except as expressly provided in this section,

15  this section does not modify the authority of municipalities

16  and counties local governmental entities to levy the tax

17  authorized in chapter 202 s. 166.231 or the duties of

18  providers of communications services telecommunications

19  companies under ss. 337.402-337.404.  This section does not

20  apply to building permits, pole attachments, or private roads,

21  private easements, and private rights-of-way. Except as

22  expressly provided in this section, this section does not

23  limit or expand whatever powers counties may have relating to

24  roads and rights-of-way. Nothing in this section shall limit

25  or expand whatever authority a local government may have to

26  impose any fee pursuant to 47 U.S.C. ss. 542 and 573.

27         (4)(k)  As used in this section, "communications

28  services" and "cable services" have "telecommunications

29  company" has the same meanings ascribed in chapter 202 meaning

30  as defined in s. 364.02.

31


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  1         (5)(4)  This section, except subsections (1) and (2)

  2  and paragraph (3)(i)(h), does not apply to the provision of

  3  pay telephone service on public, or municipal, or county roads

  4  or rights-of-way.

  5         Section 52.  The Legislature finds that it may be

  6  necessary to adopt a state policy regarding in-kind

  7  requirements, institutional networks, and contributions for,

  8  or in support of, the use or construction of public,

  9  educational, or governmental access facilities allowed under

10  federal law currently imposed only on providers of cable

11  service, especially in light of the in-kind requirements for

12  providers of telecommunications services under s. 337.401(5),

13  Florida Statutes, 1999.  Given the development of alternative

14  choices in the delivery of multichannel video programming,

15  including programming by providers of wireless, satellite,

16  Internet, and other video delivery systems, and the potential

17  competitive inequities which may be associated with such

18  requirements, networks, and contributions, the appropriate

19  committees of the Legislature shall study and evaluate, during

20  the 2001 legislative session, an appropriate state policy

21  regarding these issues, including the option of calculating

22  the present and future value of such requirements, networks,

23  and contributions available to local governments in excess of

24  the limitations imposed on franchise fees under 47 U.S.C. s.

25  542(b) as a part of the computation of replacement revenues

26  under s. 202.20, Florida Statutes, in setting the local

27  communications services tax rate.

28         Section 53.  Subsection (1) of section 212.031, Florida

29  Statutes, is amended to read:

30         212.031  Lease or rental of or license in real

31  property.--


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  1         (1)(a)  It is declared to be the legislative intent

  2  that every person is exercising a taxable privilege who

  3  engages in the business of renting, leasing, letting, or

  4  granting a license for the use of any real property unless

  5  such property is:

  6         1.  Assessed as agricultural property under s. 193.461.

  7         2.  Used exclusively as dwelling units.

  8         3.  Property subject to tax on parking, docking, or

  9  storage spaces under s. 212.03(6).

10         4.  Recreational property or the common elements of a

11  condominium when subject to a lease between the developer or

12  owner thereof and the condominium association in its own right

13  or as agent for the owners of individual condominium units or

14  the owners of individual condominium units. However, only the

15  lease payments on such property shall be exempt from the tax

16  imposed by this chapter, and any other use made by the owner

17  or the condominium association shall be fully taxable under

18  this chapter.

19         5.  A public or private street or right-of-way and

20  poles, conduits, fixtures, and similar improvements located on

21  such streets or rights-of-way, occupied or used by a utility

22  or franchised cable television company for utility or

23  communications or television purposes. For purposes of this

24  subparagraph, the term "utility" means any person providing

25  utility services as defined in s. 203.012. This exception also

26  applies to property, excluding buildings, wherever located, on

27  which the following are placed: towers, antennas, cables,

28  adjacent accessory structures, or adjacent accessory

29  equipment, not including switching equipment, used in the

30  provision of cellular, enhanced specialized mobile radio, or

31  personal communications services as defined in s. 202.11 are


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  1  placed. For purposes of this chapter, towers used in the

  2  provision of mobile communications services, as defined in s.

  3  202.11, are considered to be fixtures.

  4         6.  A public street or road which is used for

  5  transportation purposes.

  6         7.  Property used at an airport exclusively for the

  7  purpose of aircraft landing or aircraft taxiing or property

  8  used by an airline for the purpose of loading or unloading

  9  passengers or property onto or from aircraft or for fueling

10  aircraft.

11         8.a.  Property used at a port authority, as defined in

12  s. 315.02(2), exclusively for the purpose of oceangoing

13  vessels or tugs docking, or such vessels mooring on property

14  used by a port authority for the purpose of loading or

15  unloading passengers or cargo onto or from such a vessel, or

16  property used at a port authority for fueling such vessels, or

17  to the extent that the amount paid for the use of any property

18  at the port is based on the charge for the amount of tonnage

19  actually imported or exported through the port by a tenant.

20         b.  The amount charged for the use of any property at

21  the port in excess of the amount charged for tonnage actually

22  imported or exported shall remain subject to tax except as

23  provided in sub-subparagraph a.

24         9.  Property used as an integral part of the

25  performance of qualified production services.  As used in this

26  subparagraph, the term "qualified production services" means

27  any activity or service performed directly in connection with

28  the production of a qualified motion picture, as defined in s.

29  212.06(1)(b), and includes:

30         a.  Photography, sound and recording, casting, location

31  managing and scouting, shooting, creation of special and


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  1  optical effects, animation, adaptation (language, media,

  2  electronic, or otherwise), technological modifications,

  3  computer graphics, set and stage support (such as

  4  electricians, lighting designers and operators, greensmen,

  5  prop managers and assistants, and grips), wardrobe (design,

  6  preparation, and management), hair and makeup (design,

  7  production, and application), performing (such as acting,

  8  dancing, and playing), designing and executing stunts,

  9  coaching, consulting, writing, scoring, composing,

10  choreographing, script supervising, directing, producing,

11  transmitting dailies, dubbing, mixing, editing, cutting,

12  looping, printing, processing, duplicating, storing, and

13  distributing;

14         b.  The design, planning, engineering, construction,

15  alteration, repair, and maintenance of real or personal

16  property including stages, sets, props, models, paintings, and

17  facilities principally required for the performance of those

18  services listed in sub-subparagraph a.; and

19         c.  Property management services directly related to

20  property used in connection with the services described in

21  sub-subparagraphs a. and b.

22         10.  Leased, subleased, licensed, or rented to a person

23  providing food and drink concessionaire services within the

24  premises of a convention hall, exhibition hall, auditorium,

25  stadium, theater, arena, civic center, performing arts center,

26  recreational facility, or any business operated under a permit

27  issued pursuant to chapter 550.  A person providing retail

28  concessionaire services involving the sale of food and drink

29  or other tangible personal property within the premises of an

30  airport shall be subject to tax on the rental of real property

31  used for that purpose, but shall not be subject to the tax on


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                                   CS/HB 2415, First Engrossed/ntc



  1  any license to use the property.  For purposes of this

  2  subparagraph, the term "sale" shall not include the leasing of

  3  tangible personal property.

  4         11.  Property occupied pursuant to an instrument

  5  calling for payments which the department has declared, in a

  6  Technical Assistance Advisement issued on or before March 15,

  7  1993, to be nontaxable pursuant to rule 12A-1.070(19)(c),

  8  Florida Administrative Code; provided that this subparagraph

  9  shall only apply to property occupied by the same person

10  before and after the execution of the subject instrument and

11  only to those payments made pursuant to such instrument,

12  exclusive of renewals and extensions thereof occurring after

13  March 15, 1993.

14         (b)  When a lease involves multiple use of real

15  property wherein a part of the real property is subject to the

16  tax herein, and a part of the property would be excluded from

17  the tax under subparagraph (a)1., subparagraph (a)2., or

18  subparagraph (a)3., or subparagraph (a)5., the department

19  shall determine, from the lease or license and such other

20  information as may be available, that portion of the total

21  rental charge which is exempt from the tax imposed by this

22  section. The portion of the premises leased or rented by a

23  for-profit entity providing a residential facility for the

24  aged will be exempt on the basis of a pro rata portion

25  calculated by combining the square footage of the areas used

26  for residential units by the aged and for the care of such

27  residents and dividing the resultant sum by the total square

28  footage of the rented premises. For purposes of this section,

29  the term "residential facility for the aged" means a facility

30  that is licensed or certified in whole or in part under

31  chapter 400 or chapter 651; or that provides residences to the


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  1  elderly and is financed by a mortgage or loan made or insured

  2  by the United States Department of Housing and Urban

  3  Development under s. 202, s. 202 with a s. 8 subsidy, s.

  4  221(d)(3) or (4), s. 232, or s. 236 of the National Housing

  5  Act; or other such similar facility that provides residences

  6  primarily for the elderly.

  7         (c)  For the exercise of such privilege, a as tax is

  8  levied in an amount equal to 6 percent of and on the total

  9  rent or license fee charged for such real property by the

10  person charging or collecting the rental or license fee. The

11  total rent or license fee charged for such real property shall

12  include payments for the granting of a privilege to use or

13  occupy real property for any purpose and shall include base

14  rent, percentage rents, or similar charges. Such charges shall

15  be included in the total rent or license fee subject to tax

16  under this section whether or not they can be attributed to

17  the ability of the lessor's or licensor's property as used or

18  operated to attract customers. Payments for intrinsically

19  valuable personal property such as franchises, trademarks,

20  service marks, logos, or patents are not subject to tax under

21  this section.  In the case of a contractual arrangement that

22  provides for both payments taxable as total rent or license

23  fee and payments not subject to tax, the tax shall be based on

24  a reasonable allocation of such payments and shall not apply

25  to that portion which is for the nontaxable payments.

26         (d)  When the rental or license fee of any such real

27  property is paid by way of property, goods, wares,

28  merchandise, services, or other thing of value, the tax shall

29  be at the rate of 6 percent of the value of the property,

30  goods, wares, merchandise, services, or other thing of value.

31


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                                   CS/HB 2415, First Engrossed/ntc



  1         Section 54.  Revenue received by a taxing authority

  2  under this act shall be deemed to replace any taxes or fees

  3  previously imposed but repealed by this act without any

  4  further action on the part of such taxing authority. If the

  5  repeal under this act of a taxing authority's authority to

  6  levy taxes or fees impairs security pledged to retire the

  7  authority's bonded indebtedness secured by such taxes or fees,

  8  then to the extent of any such impairment, a like sum of

  9  revenue received by the authority under this act shall be

10  deemed as a matter of law to replace said taxes and fees as

11  security for the bonded indebtedness.

12         Section 55.  The taxes imposed by ss. 203.01, 202.12,

13  and 202.19, Florida Statutes, on communications services shall

14  be applied in accordance with chapter 202, Florida Statutes,

15  as created by this act, to communications services reflected

16  on bills dated on or after January 1, 2002.

17         Section 56.  Effective upon this act becoming a law,

18  the sum of $201,587 is appropriated from the General Revenue

19  Fund to the Department of Revenue in fiscal year 2000-2001 to

20  implement the provisions of this act.

21         Section 57.  The sum of $1,759,580 is appropriated from

22  the General Revenue Fund to the Department of Revenue and 20

23  full-time equivalent positions are authorized to implement the

24  provisions of this act.

25         Section 58.  Effective June 30, 2001:

26         (1)  Sections 202.10, 202.11, 202.20, 202.26, and

27  202.37, Florida Statutes, as created by this act, are

28  repealed.

29         (2)  Sections 3, 4, 5, 6, 7, 8, 9, 10, 11, 13, 14, 15,

30  16, 17, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 33, 34, 35,

31


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                                   CS/HB 2415, First Engrossed/ntc



  1  38, 39, 41, 42, 43, 48, 49, 51, 54, and 55 of this act are

  2  repealed.

  3         (3)  The advisory committee appointed pursuant to

  4  section 32 of this act is abolished.

  5         Section 59.  Effective June 30, 2001, section 337.401,

  6  Florida Statutes, as amended by this act, is amended to read:

  7         337.401  Use of right-of-way for utilities subject to

  8  regulation; permit; fees.--

  9         (1)  The department and local governmental entities,

10  referred to in ss. 337.401-337.404 as the "authority," that

11  have jurisdiction and control of public roads or publicly

12  owned rail corridors are authorized to prescribe and enforce

13  reasonable rules or regulations with reference to the placing

14  and maintaining along, across, or on any road or publicly

15  owned rail corridors under their respective jurisdictions any

16  electric transmission, telephone, or telegraph lines; pole

17  lines; poles; railways; ditches; sewers; water, heat, or gas

18  mains; pipelines; fences; gasoline tanks and pumps; or other

19  structures hereinafter 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 federal and state law require the

  4  nondiscriminatory treatment of providers of telecommunications

  5  services and because of the desire to promote competition

  6  among providers of telecommunications services, it is the

  7  intent of the Legislature that municipalities and counties

  8  treat telecommunications companies in a nondiscriminatory and

  9  competitively neutral manner when imposing rules or

10  regulations governing the placement or maintenance of

11  telecommunications facilities in the public roads or

12  rights-of-way. Rules or regulations imposed by a municipality

13  or county relating to telecommunications companies placing or

14  maintaining telecommunications facilities in its roads or

15  rights-of-way must be generally applicable to all

16  telecommunications companies and, notwithstanding any other

17  law, may not require a telecommunications company to apply for

18  or enter into an individual license, franchise, or other

19  agreement with the municipality or county as a condition of

20  placing or maintaining telecommunications facilities in its

21  roads or rights-of-way. In addition to other reasonable rules

22  or regulations that a municipality or county may adopt

23  relating to the placement or maintenance of telecommunications

24  facilities in its roads or rights-of-way under this

25  subsection, a municipality or county may require a

26  telecommunications company that places or seeks to place

27  facilities in its roads or rights-of-way to register with the

28  municipality or county and to provide the name of the

29  registrant; the name, address, and telephone number of a

30  contact person for the registrant; the number of the

31  registrant's current certificate of authorization issued by


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                                   CS/HB 2415, First Engrossed/ntc



  1  the Florida Public Service Commission or the Federal

  2  Communications Commission; and proof of insurance or

  3  self-insuring status adequate to defend and cover claims.

  4         (b)  Each municipality and county retains the authority

  5  to regulate and manage municipal and county roads or

  6  rights-of-way in exercising its police power. Any rules or

  7  regulations adopted by a municipality or county which govern

  8  the occupation of its roads or rights-of-way by

  9  telecommunications companies must be related to the placement

10  or maintenance of facilities in such roads or rights-of-way,

11  must be reasonable and nondiscriminatory, and may include only

12  those matters necessary to manage the roads or rights-of-way

13  of the municipality or county.

14         (c)1.  It is the intention of the state to treat all

15  providers of communications services that use or occupy

16  municipal or charter county roads or rights-of-way for the

17  provision of communications services in a nondiscriminatory

18  and competitively neutral manner with respect to the payment

19  of permit fees. Certain providers of communications services

20  have been granted by general law the authority to offset

21  permit fees against franchise or other fees while other

22  providers of communications services have not been granted

23  this authority. In order to treat all providers of

24  communications services in a nondiscriminatory and

25  competitively neutral manner with respect to the payment of

26  permit fees, each municipality and charter county shall make

27  an election under either sub-subparagraph a. or

28  sub-subparagraph b. and must inform the Department of Revenue

29  of the election by certified mail by October 1, 2001. Such

30  election take effect January 1, 2002.

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                                   CS/HB 2415, First Engrossed/ntc



  1         a.(I)  The municipality or charter county may require

  2  and collect permit fees from any providers of communications

  3  services that use or occupy municipal or 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 municipality or charter county

22  under this sub-subparagraph may not exceed $100. However,

23  permit fees may not be imposed with respect to permits that

24  may be required for service drop lines not required to be

25  noticed under s. 556.108(5)(b) or for any activity that does

26  not require the physical disturbance of the roads or

27  rights-of-way or does not impair access to or full use of the

28  roads or rights-of-way.

29         (II)  To ensure competitive neutrality among providers

30  of communications services, for any municipality or charter

31  county that elects to exercise its authority to require and


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                                   CS/HB 2415, First Engrossed/ntc



  1  collect permit fees under this sub-subparagraph, the rate of

  2  the local communications services tax imposed by such

  3  jurisdiction, as computed under s. 202.20(1) and (2), shall

  4  automatically be reduced by a rate of 0.12 percent.

  5         b.  Alternatively, the municipality or charter county

  6  may elect not to require and collect permit fees from any

  7  provider of communications services that uses or occupies

  8  municipal or charter county roads or rights-of-way for the

  9  provision of communications services; however, each

10  municipality or charter county that elects to operate under

11  this sub-subparagraph retains all authority to establish rules

12  and regulations for providers of communications services to

13  use or occupy roads or rights-of-way as provided in this

14  section. If a municipality or charter county elects to operate

15  under this sub-subparagraph, the total rate for the local

16  communications services tax as computed under s. 202.20(1) and

17  (2) for that municipality or charter county may be increased

18  by ordinance by an amount not to exceed a rate of 0.12

19  percent.

20         c.  A municipality or charter county that does not make

21  an election as provided for in this subparagraph shall be

22  presumed to have elected to operate under the provisions of

23  sub-subparagraph b.

24         2.  Each noncharter county shall make an election under

25  either sub-subparagraph a. or sub-subparagraph b. and shall

26  inform the Department of Revenue of the election by certified

27  mail by October 1, 2001. Such election shall take effect

28  January 1, 2002.

29         a.  The noncharter county may elect to require and

30  collect permit fees from any providers of communications

31  services that use or occupy noncharter county roads or


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                                   CS/HB 2415, First Engrossed/ntc



  1  rights-of-way. All fees permitted under this sub-subparagraph

  2  must be reasonable and commensurate with the direct and actual

  3  cost of the regulatory activity, including issuing and

  4  processing permits, plan reviews, physical inspection, and

  5  direct administrative costs; must be demonstrable; and must be

  6  equitable among users of the roads or rights-of-way. A fee

  7  permitted under this sub-subparagraph may not: be offset

  8  against the tax imposed under chapter 202; include the costs

  9  of roads or rights-of-way acquisition or roads or

10  rights-of-way rental; include any general administrative,

11  management, or maintenance costs of the roads or

12  rights-of-way; or be based on a percentage of the value or

13  costs associated with the work to be performed on the roads or

14  rights-of-way. In an action to recover amounts due for a fee

15  not permitted under this sub-subparagraph, the prevailing

16  party may recover court costs and attorney's fees at trial and

17  on appeal. In addition to the limitations set forth in this

18  section, a fee levied by a noncharter county under this

19  sub-subparagraph may not exceed $100. However, permit fees may

20  not be imposed with respect to permits that may be required

21  for service drop lines not required to be noticed under s.

22  556.108(5)(b) or for any activity that does not require the

23  physical disturbance of the roads or rights-of-way or does not

24  impair access to or full use of the roads or rights-of-way.

25         b.  Alternatively, the noncharter county may elect not

26  to require and collect permit fees from any provider of

27  communications services that uses or occupies noncharter

28  county roads or rights-of-way for the provision of

29  communications services; however, each noncharter county that

30  elects to operate under this sub-subparagraph shall retain all

31  authority to establish rules and regulations for providers of


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  1  communications services to use or occupy roads or

  2  rights-of-way as provided in this section. If a noncharter

  3  county elects to operate under this sub-subparagraph, the

  4  total rate for the local communications services tax as

  5  computed under s. 202.20(1) and (2) for that noncharter county

  6  may be increased by ordinance by an amount not to exceed a

  7  rate of 0.24 percent, to replace the revenue the noncharter

  8  county would otherwise have received from permit fees for

  9  providers of communications services.

10         c.  A noncharter county that does not make an election

11  as provided for in this subparagraph shall be presumed to have

12  elected to operate under the provisions of sub-subparagraph b.

13         3.  Except as provided in this paragraph,

14  municipalities and counties retain all existing authority to

15  require and collect permit fees from users or occupants of

16  municipal or county roads or rights-of-way and to set

17  appropriate permit fee amounts.

18         (d)  After January 1, 2001, in addition to any other

19  notice requirements, a municipality must provide to the

20  Secretary of State, at least 10 days prior to consideration on

21  first reading, notice of a proposed ordinance governing a

22  telecommunications company placing or maintaining

23  telecommunications facilities in its roads or rights-of-way.

24  After January 1, 2001, in addition to any other notice

25  requirements, a county must provide to the Secretary of State,

26  at least 15 days prior to consideration at a public hearing,

27  notice of a proposed ordinance governing a telecommunications

28  company placing or maintaining telecommunications facilities

29  in its roads or rights-of-way. The notice required by this

30  paragraph must be published by the Secretary of State on a

31  designated Internet website. The failure of a municipality or


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  1  county to provide such notice does not render the ordinance

  2  invalid.

  3         (e)  If any municipality requires any

  4  telecommunications company to pay a fee or other consideration

  5  as a condition for granting permission to occupy municipal

  6  streets and rights-of-way for poles, wires, and other

  7  fixtures, such fee or consideration may not exceed 1 percent

  8  of the gross receipts on recurring local service revenues for

  9  services provided within the corporate limits of the

10  municipality by such telecommunications company. Included

11  within such 1-percent maximum fee or consideration are all

12  taxes, licenses, fees, in-kind contributions accepted pursuant

13  to subsection (5) paragraph (g), and other impositions except

14  ad valorem taxes and amounts for assessments for special

15  benefits, such as sidewalks, street pavings, and similar

16  improvements, and occupational license taxes levied or imposed

17  by a municipality upon the telecommunications company.  This

18  subsection paragraph shall not impair any franchise in

19  existence on July 1, 1985.

20         (4)(f)  A municipality may by ordinance enter into an

21  agreement with require any person providing telecommunication

22  services defined in s. 203.012(7) as a condition for granting

23  permission to occupy or use any city street, alley, viaduct,

24  elevated roadway, bridge, or other public way. The agreement

25  shall permit the telecommunication service provider to

26  construct, operate, maintain, repair, rebuild, or replace a

27  telecommunications route within a municipal right-of-way.  The

28  agreement shall provide for to pay a fee or other

29  consideration payable annually based on actual linear feet of

30  any cable, fiber optic, or other pathway that makes physical

31  use of the municipal right-of-way.  In no event shall the fee


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  1  or other consideration imposed pursuant to this subsection

  2  paragraph be less than $500 per linear mile of any cable,

  3  fiber optic, or other pathway that makes physical use of the

  4  municipal right-of-way.  Any fee or other consideration

  5  imposed by this subsection paragraph in excess of $500 shall

  6  be applied in a nondiscriminatory manner and shall not exceed

  7  the sum of:

  8         (a)1.  Costs directly related to the inconvenience or

  9  impairment solely caused by the disturbance of the municipal

10  right-of-way; and

11         (b)2.  The reasonable cost of the regulatory activity

12  of the municipality.; and

13         (c)3.  The proportionate share of cost of land for such

14  street, alley, or other public way attributable to utilization

15  of the right-of-way by a telecommunication service provider.

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17  Furthermore, no telecommunication service provider shall be

18  required to pay more than one such fee or other consideration

19  annually for the construction, maintenance, operation, repair,

20  rebuilding, or replacement of a parallel telecommunications

21  route owned by it, or by a subsidiary under its direct

22  control, which makes use of the right-of-way of any

23  municipality enacting an ordinance pursuant to this subsection

24  paragraph.  The fee or other consideration imposed pursuant to

25  this subsection paragraph shall not apply in any manner to any

26  telecommunication service provider who provides

27  telecommunication services as defined in s. 203.012(3) for any

28  services provided by such service provider.  Any agreement

29  entered into pursuant to the authority of this subsection

30  paragraph prior to June 3, 1988, and the fees or fee schedule

31  in effect on that date shall remain in full force and effect


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  1  until such agreement expires. Any ordinance enacted pursuant

  2  to this subsection paragraph prior to June 3, 1988, and the

  3  fees or fee schedule in effect on that date shall remain in

  4  full force and effect unless the ordinance is repealed by the

  5  municipality. Notwithstanding the language contained herein a

  6  municipality may reenact any ordinance which has an automatic

  7  expiration date provided the ordinance does not increase the

  8  fees in effect in said ordinance in violation of this section.

  9         (5)(g)  Except as expressly allowed or authorized by

10  general law and except for the rights-of-way permit fees

11  subject to subsection (3) paragraph (e), a municipality may

12  not levy on a telecommunications company a tax, fee, or other

13  charge for operating as a telecommunications company within

14  the jurisdiction of the municipality or which is in any way

15  related to using its roads or rights-of-way.  A municipality

16  may not allow a telecommunications company to pay a fee or

17  provide compensation in excess of the limits prescribed in

18  this section.  A municipality may not require or solicit

19  in-kind compensation in lieu of any fees imposed pursuant to

20  this section.  Nothing in this subsection paragraph shall

21  impair any ordinance or agreement in effect on the effective

22  date of this act May 22, 1998, which provides for or allows

23  in-kind compensation by a telecommunications company.

24         (6)(h)  A local governmental entity may not use its

25  authority over the placement of facilities in its roads and

26  rights-of-way as a basis for asserting or exercising

27  regulatory control over a telecommunications company regarding

28  matters within the exclusive jurisdiction of the Florida

29  Public Service Commission or the Federal Communications

30  Commission, including, but not limited to, the operations,

31


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  1  systems, qualifications, services, service quality, service

  2  territory, and prices of a telecommunications company.

  3         (7)(i)  A telecommunications company that has obtained

  4  permission to occupy the roads and rights-of-way of an

  5  incorporated city or town municipality pursuant to s. 362.01

  6  or that is otherwise lawfully occupying the roads or

  7  rights-of-way of a municipality on the effective date of this

  8  act shall not be required to obtain additional consent to

  9  continue such lawful occupation of those roads or

10  rights-of-way; however, nothing in this subsection paragraph

11  shall be interpreted to limit the power of a municipality to

12  impose a fee or adopt or enforce reasonable rules or

13  regulations as provided in this section.

14         (8)(j)  Except as expressly provided in this section,

15  this section does not modify the authority of local

16  governmental entities to levy the tax authorized in s. 166.231

17  or the duties of telecommunications companies under ss.

18  337.402-337.404.  This section does not apply to building

19  permits, pole attachments, or private roads, private

20  easements, and private rights-of-way. Except as expressly

21  provided in this section, this section does not limit or

22  expand whatever powers counties may have relating to roads and

23  rights-of-way. Nothing in this section shall limit or expand

24  whatever authority a local government may have to impose any

25  fee pursuant to 47 U.S.C. ss. 542 and 573.

26         (9)(k)  As used in this section, "telecommunications

27  company" has the same meaning as defined in s. 364.02.

28         (10)(4)  This section, except subsections (1), and (2),

29  and (6) paragraph (3)(h), does not apply to the provision of

30  pay telephone service on public or municipal roads or

31  rights-of-way.


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  1         Section 60.  Except as otherwise provided herein, this

  2  act shall take effect July 1, 2000.

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