House Bill 2415e1
CODING: Words stricken are deletions; words underlined are additions.
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;
1
CODING: Words stricken are deletions; words underlined are additions.
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
2
CODING: Words stricken are deletions; words underlined are additions.
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
3
CODING: Words stricken are deletions; words underlined are additions.
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
4
CODING: Words stricken are deletions; words underlined are additions.
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
5
CODING: Words stricken are deletions; words underlined are additions.
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
6
CODING: Words stricken are deletions; words underlined are additions.
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
7
CODING: Words stricken are deletions; words underlined are additions.
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
8
CODING: Words stricken are deletions; words underlined are additions.
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
9
CODING: Words stricken are deletions; words underlined are additions.
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
31
10
CODING: Words stricken are deletions; words underlined are additions.
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
11
CODING: Words stricken are deletions; words underlined are additions.
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
12
CODING: Words stricken are deletions; words underlined are additions.
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
31
13
CODING: Words stricken are deletions; words underlined are additions.
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
14
CODING: Words stricken are deletions; words underlined are additions.
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
31
15
CODING: Words stricken are deletions; words underlined are additions.
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.
31
16
CODING: Words stricken are deletions; words underlined are additions.
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
17
CODING: Words stricken are deletions; words underlined are additions.
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
18
CODING: Words stricken are deletions; words underlined are additions.
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.
31
19
CODING: Words stricken are deletions; words underlined are additions.
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
20
CODING: Words stricken are deletions; words underlined are additions.
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
31
21
CODING: Words stricken are deletions; words underlined are additions.
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
31
22
CODING: Words stricken are deletions; words underlined are additions.
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.
31
23
CODING: Words stricken are deletions; words underlined are additions.
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.
24
CODING: Words stricken are deletions; words underlined are additions.
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).
25
CODING: Words stricken are deletions; words underlined are additions.
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
31
26
CODING: Words stricken are deletions; words underlined are additions.
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
27
CODING: Words stricken are deletions; words underlined are additions.
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
31
28
CODING: Words stricken are deletions; words underlined are additions.
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
29
CODING: Words stricken are deletions; words underlined are additions.
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
31
30
CODING: Words stricken are deletions; words underlined are additions.
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.
31
CODING: Words stricken are deletions; words underlined are additions.
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
32
CODING: Words stricken are deletions; words underlined are additions.
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.
31
33
CODING: Words stricken are deletions; words underlined are additions.
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.
34
CODING: Words stricken are deletions; words underlined are additions.
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
35
CODING: Words stricken are deletions; words underlined are additions.
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
36
CODING: Words stricken are deletions; words underlined are additions.
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
37
CODING: Words stricken are deletions; words underlined are additions.
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
38
CODING: Words stricken are deletions; words underlined are additions.
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
39
CODING: Words stricken are deletions; words underlined are additions.
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
40
CODING: Words stricken are deletions; words underlined are additions.
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
41
CODING: Words stricken are deletions; words underlined are additions.
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
42
CODING: Words stricken are deletions; words underlined are additions.
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
43
CODING: Words stricken are deletions; words underlined are additions.
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
44
CODING: Words stricken are deletions; words underlined are additions.
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
45
CODING: Words stricken are deletions; words underlined are additions.
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
46
CODING: Words stricken are deletions; words underlined are additions.
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
47
CODING: Words stricken are deletions; words underlined are additions.
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
48
CODING: Words stricken are deletions; words underlined are additions.
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
49
CODING: Words stricken are deletions; words underlined are additions.
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
50
CODING: Words stricken are deletions; words underlined are additions.
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
51
CODING: Words stricken are deletions; words underlined are additions.
CS/HB 2415, First Engrossed/ntc
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
52
CODING: Words stricken are deletions; words underlined are additions.
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
53
CODING: Words stricken are deletions; words underlined are additions.
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
54
CODING: Words stricken are deletions; words underlined are additions.
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
55
CODING: Words stricken are deletions; words underlined are additions.
CS/HB 2415, First Engrossed/ntc
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
56
CODING: Words stricken are deletions; words underlined are additions.
CS/HB 2415, First Engrossed/ntc
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
57
CODING: Words stricken are deletions; words underlined are additions.
CS/HB 2415, First Engrossed/ntc
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
58
CODING: Words stricken are deletions; words underlined are additions.
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
59
CODING: Words stricken are deletions; words underlined are additions.
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.
60
CODING: Words stricken are deletions; words underlined are additions.
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
61
CODING: Words stricken are deletions; words underlined are additions.
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
62
CODING: Words stricken are deletions; words underlined are additions.
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
63
CODING: Words stricken are deletions; words underlined are additions.
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
64
CODING: Words stricken are deletions; words underlined are additions.
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,
65
CODING: Words stricken are deletions; words underlined are additions.
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
66
CODING: Words stricken are deletions; words underlined are additions.
CS/HB 2415, First Engrossed/ntc
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
67
CODING: Words stricken are deletions; words underlined are additions.
CS/HB 2415, First Engrossed/ntc
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
68
CODING: Words stricken are deletions; words underlined are additions.
CS/HB 2415, First Engrossed/ntc
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
69
CODING: Words stricken are deletions; words underlined are additions.
CS/HB 2415, First Engrossed/ntc
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
70
CODING: Words stricken are deletions; words underlined are additions.
CS/HB 2415, First Engrossed/ntc
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.
71
CODING: Words stricken are deletions; words underlined are additions.
CS/HB 2415, First Engrossed/ntc
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.
72
CODING: Words stricken are deletions; words underlined are additions.
CS/HB 2415, First Engrossed/ntc
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
73
CODING: Words stricken are deletions; words underlined are additions.
CS/HB 2415, First Engrossed/ntc
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
74
CODING: Words stricken are deletions; words underlined are additions.
CS/HB 2415, First Engrossed/ntc
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
75
CODING: Words stricken are deletions; words underlined are additions.
CS/HB 2415, First Engrossed/ntc
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
76
CODING: Words stricken are deletions; words underlined are additions.
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
77
CODING: Words stricken are deletions; words underlined are additions.
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
78
CODING: Words stricken are deletions; words underlined are additions.
CS/HB 2415, First Engrossed/ntc
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
79
CODING: Words stricken are deletions; words underlined are additions.
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:
80
CODING: Words stricken are deletions; words underlined are additions.
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.
81
CODING: Words stricken are deletions; words underlined are additions.
CS/HB 2415, First Engrossed/ntc
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
82
CODING: Words stricken are deletions; words underlined are additions.
CS/HB 2415, First Engrossed/ntc
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.
31
83
CODING: Words stricken are deletions; words underlined are additions.
CS/HB 2415, First Engrossed/ntc
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.
31
84
CODING: Words stricken are deletions; words underlined are additions.
CS/HB 2415, First Engrossed/ntc
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
85
CODING: Words stricken are deletions; words underlined are additions.
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
86
CODING: Words stricken are deletions; words underlined are additions.
CS/HB 2415, First Engrossed/ntc
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
87
CODING: Words stricken are deletions; words underlined are additions.
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
88
CODING: Words stricken are deletions; words underlined are additions.
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
89
CODING: Words stricken are deletions; words underlined are additions.
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.
90
CODING: Words stricken are deletions; words underlined are additions.
CS/HB 2415, First Engrossed/ntc
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.
91
CODING: Words stricken are deletions; words underlined are additions.
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
92
CODING: Words stricken are deletions; words underlined are additions.
CS/HB 2415, First Engrossed/ntc
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
93
CODING: Words stricken are deletions; words underlined are additions.
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
94
CODING: Words stricken are deletions; words underlined are additions.
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.
95
CODING: Words stricken are deletions; words underlined are additions.
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
96
CODING: Words stricken are deletions; words underlined are additions.
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.
97
CODING: Words stricken are deletions; words underlined are additions.
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
98
CODING: Words stricken are deletions; words underlined are additions.
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
99
CODING: Words stricken are deletions; words underlined are additions.
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,
100
CODING: Words stricken are deletions; words underlined are additions.
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
101
CODING: Words stricken are deletions; words underlined are additions.
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
102
CODING: Words stricken are deletions; words underlined are additions.
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
103
CODING: Words stricken are deletions; words underlined are additions.
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
104
CODING: Words stricken are deletions; words underlined are additions.
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
105
CODING: Words stricken are deletions; words underlined are additions.
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
106
CODING: Words stricken are deletions; words underlined are additions.
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
107
CODING: Words stricken are deletions; words underlined are additions.
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
108
CODING: Words stricken are deletions; words underlined are additions.
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
109
CODING: Words stricken are deletions; words underlined are additions.
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
110
CODING: Words stricken are deletions; words underlined are additions.
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
111
CODING: Words stricken are deletions; words underlined are additions.
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.
112
CODING: Words stricken are deletions; words underlined are additions.
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
113
CODING: Words stricken are deletions; words underlined are additions.
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
114
CODING: Words stricken are deletions; words underlined are additions.
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
115
CODING: Words stricken are deletions; words underlined are additions.
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
116
CODING: Words stricken are deletions; words underlined are additions.
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
117
CODING: Words stricken are deletions; words underlined are additions.
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
118
CODING: Words stricken are deletions; words underlined are additions.
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.--
119
CODING: Words stricken are deletions; words underlined are additions.
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
120
CODING: Words stricken are deletions; words underlined are additions.
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
121
CODING: Words stricken are deletions; words underlined are additions.
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,
122
CODING: Words stricken are deletions; words underlined are additions.
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
123
CODING: Words stricken are deletions; words underlined are additions.
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
124
CODING: Words stricken are deletions; words underlined are additions.
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
125
CODING: Words stricken are deletions; words underlined are additions.
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
126
CODING: Words stricken are deletions; words underlined are additions.
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
127
CODING: Words stricken are deletions; words underlined are additions.
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,
128
CODING: Words stricken are deletions; words underlined are additions.
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
129
CODING: Words stricken are deletions; words underlined are additions.
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
130
CODING: Words stricken are deletions; words underlined are additions.
CS/HB 2415, First Engrossed/ntc
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
131
CODING: Words stricken are deletions; words underlined are additions.
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
132
CODING: Words stricken are deletions; words underlined are additions.
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
133
CODING: Words stricken are deletions; words underlined are additions.
CS/HB 2415, First Engrossed/ntc
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
134
CODING: Words stricken are deletions; words underlined are additions.
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
135
CODING: Words stricken are deletions; words underlined are additions.
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,
136
CODING: Words stricken are deletions; words underlined are additions.
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
137
CODING: Words stricken are deletions; words underlined are additions.
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.
138
CODING: Words stricken are deletions; words underlined are additions.
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
139
CODING: Words stricken are deletions; words underlined are additions.
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
140
CODING: Words stricken are deletions; words underlined are additions.
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
141
CODING: Words stricken are deletions; words underlined are additions.
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
142
CODING: Words stricken are deletions; words underlined are additions.
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
143
CODING: Words stricken are deletions; words underlined are additions.
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
144
CODING: Words stricken are deletions; words underlined are additions.
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
145
CODING: Words stricken are deletions; words underlined are additions.
CS/HB 2415, First Engrossed/ntc
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.--
146
CODING: Words stricken are deletions; words underlined are additions.
CS/HB 2415, First Engrossed/ntc
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
147
CODING: Words stricken are deletions; words underlined are additions.
CS/HB 2415, First Engrossed/ntc
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
148
CODING: Words stricken are deletions; words underlined are additions.
CS/HB 2415, First Engrossed/ntc
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
149
CODING: Words stricken are deletions; words underlined are additions.
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
150
CODING: Words stricken are deletions; words underlined are additions.
CS/HB 2415, First Engrossed/ntc
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
151
CODING: Words stricken are deletions; words underlined are additions.
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
152
CODING: Words stricken are deletions; words underlined are additions.
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
153
CODING: Words stricken are deletions; words underlined are additions.
CS/HB 2415, First Engrossed/ntc
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
154
CODING: Words stricken are deletions; words underlined are additions.
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.
31
155
CODING: Words stricken are deletions; words underlined are additions.
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
156
CODING: Words stricken are deletions; words underlined are additions.
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
157
CODING: Words stricken are deletions; words underlined are additions.
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
158
CODING: Words stricken are deletions; words underlined are additions.
CS/HB 2415, First Engrossed/ntc
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
159
CODING: Words stricken are deletions; words underlined are additions.
CS/HB 2415, First Engrossed/ntc
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
160
CODING: Words stricken are deletions; words underlined are additions.
CS/HB 2415, First Engrossed/ntc
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.
16
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
161
CODING: Words stricken are deletions; words underlined are additions.
CS/HB 2415, First Engrossed/ntc
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
162
CODING: Words stricken are deletions; words underlined are additions.
CS/HB 2415, First Engrossed/ntc
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.
163
CODING: Words stricken are deletions; words underlined are additions.
CS/HB 2415, First Engrossed/ntc
1 Section 60. Except as otherwise provided herein, this
2 act shall take effect July 1, 2000.
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
164