House Bill 0743e1

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                                           HB 743, First Engrossed



  1                      A bill to be entitled

  2         An act relating to entertainment industry

  3         incentives; creating s. 288.1258, F.S.;

  4         authorizing entertainment industry production

  5         companies to apply to the Department of Revenue

  6         for approval by the Office of the Film

  7         Commissioner as a qualified production company

  8         for the purpose of receiving sales tax

  9         exemptions; directing the office to develop

10         application procedures; providing for denial

11         and revocation of a certificate of exemption;

12         providing a penalty for falsification of an

13         application or unauthorized use of a

14         certificate of exemption; providing categories

15         of qualification for a certificate of

16         exemption; providing duties of the Department

17         of Revenue with respect to issuance of a

18         certificate of exemption for qualified

19         production companies; requiring the Office of

20         the Film Commissioner to keep specified

21         records; requiring an annual report to the

22         Legislature; amending s. 212.031, F.S.,

23         relating to the tax on the lease or rental of

24         or license in real property; providing that the

25         exemption for property used as an integral part

26         of the performance of qualified production

27         services inures to the taxpayer upon

28         presentation of a certificate of exemption

29         issued under s. 288.1258, F.S.; amending s.

30         212.06, F.S.; providing that the exemption for

31         fabrication labor used in the production of a


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                                           HB 743, First Engrossed



  1         qualified motion picture inures to the taxpayer

  2         upon presentation of a certificate of exemption

  3         issued under s. 288.1258, F.S.; amending s.

  4         212.08, F.S.; providing that the exemption for

  5         certain motion picture or video equipment and

  6         sound recording equipment shall be a point of

  7         sale exemption rather than by refund; providing

  8         that the exemption inures to the taxpayer upon

  9         presentation of a certificate of exemption

10         issued under s. 288.1258, F.S.; providing that

11         the partial exemption for master tapes,

12         records, films, or video tapes inures to the

13         taxpayer upon presentation of a certificate of

14         exemption issued under s. 288.1258, F.S.;

15         amending s. 213.053, F.S.; authorizing the

16         Department of Revenue to share certain

17         information with the Office of the Film

18         Commissioner; providing effective dates.

19

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

21

22         Section 1.  Effective July 1, 2000, section 288.1258,

23  Florida Statutes, is created to read:

24         288.1258  Entertainment industry qualified production

25  companies; application procedure; categories; duties of the

26  Department of Revenue; records and reports.--

27         (1)  PRODUCTION COMPANIES AUTHORIZED TO APPLY.--

28         (a)  Any production company engaged in this state in

29  the production of motion pictures, made-for-TV motion

30  pictures, television series, commercial advertising, music

31  videos, or sound recordings may submit an application to the


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                                           HB 743, First Engrossed



  1  Department of Revenue to be approved by the Office of the Film

  2  Commissioner as a qualified production company for the purpose

  3  of receiving a sales and use tax certificate of exemption from

  4  the Department of Revenue.

  5         (b)  For the purposes of this section, "qualified

  6  production company" means any production company that has

  7  submitted a properly completed application to the Department

  8  of Revenue and that is subsequently qualified by the Office of

  9  the Film Commissioner.

10         (2)  APPLICATION PROCEDURE.--

11         (a)  The Department of Revenue will review all

12  submitted applications for the required information.  Within

13  10 working days after the receipt of a properly completed

14  application the Department of Revenue will forward the

15  completed application to the Office of the Film Commissioner

16  for approval.

17         (b)1.  The Office of the Film Commissioner shall

18  establish a process by which an entertainment industry

19  production company may be approved by the office as a

20  qualified production company and may receive a certificate of

21  exemption from the Department of Revenue for the sales and use

22  tax exemptions under ss. 212.031, 212.06, and 212.08.

23         2.  Upon determination by the Office of the Film

24  Commissioner that a production company meets the established

25  approval criteria and qualifies for exemption, the Office of

26  the Film Commissioner shall return the approved application or

27  application renewal or extension to the Department of Revenue,

28  which shall issue a certificate of exemption.

29         3.  The Office of the Film Commissioner shall deny an

30  application or application for renewal or extension from a

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                                           HB 743, First Engrossed



  1  production company if it determines that the production

  2  company does not meet the established approval criteria.

  3         (c)  The Office of the Film Commissioner shall develop,

  4  with the cooperation of the Department of Revenue and local

  5  government entertainment industry promotion agencies, a

  6  standardized application form for use in approving qualified

  7  production companies.

  8         1.  The application form shall include, but not be

  9  limited to, production-related information on employment,

10  proposed budgets, planned purchases of items exempted from

11  sales and use taxes under ss. 212.031, 212.06, and 212.08, a

12  signed affirmation from the applicant that any items purchased

13  for which the applicant is seeking a tax exemption are

14  intended for use exclusively as an integral part of

15  entertainment industry preproduction, production, or

16  postproduction activities engaged in primarily in this state,

17  and a signed affirmation from the Office of the Film

18  Commissioner that the information on the application form has

19  been verified and is correct. In lieu of information on

20  projected employment, proposed budgets, or planned purchases

21  of exempted items, a production company seeking a 1-year

22  certificate of exemption may submit summary historical data on

23  employment, production budgets, and purchases of exempted

24  items related to production activities in this state. Any

25  information gathered from production companies for the

26  purposes of this section shall be considered confidential

27  taxpayer information and shall be disclosed only as provided

28  in s. 213.053.

29         2.  The application form may be distributed to

30  applicants by the Office of the Film Commissioner or local

31  film commissions.


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                                           HB 743, First Engrossed



  1         (d)  All applications, renewals, and extensions for

  2  designation as a qualified production company shall be

  3  processed by the Office of the Film Commissioner.

  4         (e)  In the event that the Department of Revenue

  5  determines that a production company no longer qualifies for a

  6  certificate of exemption, or has used a certificate of

  7  exemption for purposes other than those authorized by this

  8  section and chapter 212, the Department of Revenue shall

  9  revoke the certificate of exemption of that production

10  company, and any sales or use taxes exempted on items

11  purchased or leased by the production company during the time

12  such company did not qualify for a certificate of exemption or

13  improperly used a certificate of exemption shall become

14  immediately due to the Department of Revenue, along with

15  interest and penalty as provided by s. 212.12.  In addition to

16  the other penalties imposed by law, any person who knowingly

17  and willfully falsifies an application, or uses a certificate

18  of exemption for purposes other than those authorized by this

19  section and chapter 212, commits a felony of the third degree,

20  punishable as provided in s. 775.082, s. 775.083, and s.

21  775.084.

22         (3)  CATEGORIES.--

23         (a)1.  A production company may be qualified for

24  designation as a qualified production company for a period of

25  1 year if the company has operated a business in Florida at a

26  permanent address for a period of 12 consecutive months.  Such

27  a qualified production company shall receive a single 1-year

28  certificate of exemption from the Department of Revenue for

29  the sales and use tax exemptions under ss. 212.031, 212.06,

30  and 212.08, which certificate shall expire 1 year after

31  issuance or upon the cessation of business operations in the


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                                           HB 743, First Engrossed



  1  state, at which time the certificate shall be surrendered to

  2  the Department of Revenue.

  3         2.  The Office of the Film Commissioner shall develop a

  4  method by which a qualified production company may annually

  5  renew a 1-year certificate of exemption for a period of up to

  6  5 years without requiring the production company to resubmit a

  7  new application during that 5-year period.

  8         3.  Any qualified production company may submit a new

  9  application for a 1-year certificate of exemption upon the

10  expiration of that company's certificate of exemption.

11         (b)1.  A production company may be qualified for

12  designation as a qualified production company for a period of

13  90 days. Such production company shall receive a single 90-day

14  certificate of exemption from the Department of Revenue for

15  the sales and use tax exemptions under ss. 212.031, 212.06,

16  and 212.08, which certificate shall expire 90 days after

17  issuance, with extensions contingent upon approval of the

18  Office of the Film Commissioner.  The certificate shall be

19  surrendered to the Department of Revenue upon its expiration.

20         2.  Any production company may submit a new application

21  for a 90-day certificate of exemption upon the expiration of

22  that company's certificate of exemption.

23         (4)  DUTIES OF THE DEPARTMENT OF REVENUE.--

24         (a)  The Department of Revenue shall review the initial

25  application and notify the applicant of any omissions and

26  request additional information if needed.  An application

27  shall be complete upon receipt of all requested information.

28  The Department of Revenue shall forward all complete

29  applications to the Office of the Film Commissioner within 10

30  working days.

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                                           HB 743, First Engrossed



  1         (b)  The Department of Revenue shall issue a numbered

  2  certificate of exemption to a qualified production company

  3  within 5 working days of the receipt of an approved

  4  application, application renewal, or application extension

  5  from the Office of the Film Commissioner.

  6         (c)  The Department of Revenue may promulgate such

  7  rules and shall prescribe and publish such forms as may be

  8  necessary to effectuate the purposes of this section or any of

  9  the sales tax exemptions which are reasonably related to the

10  provisions of this section.

11         (d)  The Department of Revenue is authorized to

12  establish audit procedures in accordance with the provisions

13  of ss. 212.12, 212.13, and 213.34 which relate to the sales

14  tax exemption provisions of this section.

15         (5)  RELATIONSHIP OF TAX EXEMPTIONS TO INDUSTRY GROWTH;

16  REPORT TO THE LEGISLATURE.--The Office of the Film

17  Commissioner shall keep annual records from the information

18  provided on taxpayer applications for tax exemption

19  certificates beginning January 1, 2001. These records shall

20  reflect a percentage comparison of the annual amount of funds

21  exempted to the estimated amount of funds expended in relation

22  to entertainment industry products. In addition, the office

23  shall maintain data showing annual growth in Florida-based

24  entertainment industry companies and entertainment industry

25  employment and wages. The Office of the Film Commissioner

26  shall report this information to the Legislature by no later

27  than December 1 of each year.

28         Section 2.  Paragraph (a) of subsection (1) of section

29  212.031, Florida Statutes, is amended to read:

30         212.031  Lease or rental of or license in real

31  property.--


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                                           HB 743, First Engrossed



  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 antennas, cables, adjacent accessory structures, or

28  adjacent accessory equipment used in the provision of

29  cellular, enhanced specialized mobile radio, or personal

30  communications services are placed.

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                                           HB 743, First Engrossed



  1         6.  A public street or road which is used for

  2  transportation purposes.

  3         7.  Property used at an airport exclusively for the

  4  purpose of aircraft landing or aircraft taxiing or property

  5  used by an airline for the purpose of loading or unloading

  6  passengers or property onto or from aircraft or for fueling

  7  aircraft.

  8         8.a.  Property used at a port authority, as defined in

  9  s. 315.02(2), exclusively for the purpose of oceangoing

10  vessels or tugs docking, or such vessels mooring on property

11  used by a port authority for the purpose of loading or

12  unloading passengers or cargo onto or from such a vessel, or

13  property used at a port authority for fueling such vessels, or

14  to the extent that the amount paid for the use of any property

15  at the port is based on the charge for the amount of tonnage

16  actually imported or exported through the port by a tenant.

17         b.  The amount charged for the use of any property at

18  the port in excess of the amount charged for tonnage actually

19  imported or exported shall remain subject to tax except as

20  provided in sub-subparagraph a.

21         9.  Property used as an integral part of the

22  performance of qualified production services.  As used in this

23  subparagraph, the term "qualified production services" means

24  any activity or service performed directly in connection with

25  the production of a qualified motion picture, as defined in s.

26  212.06(1)(b), and includes:

27         a.  Photography, sound and recording, casting, location

28  managing and scouting, shooting, creation of special and

29  optical effects, animation, adaptation (language, media,

30  electronic, or otherwise), technological modifications,

31  computer graphics, set and stage support (such as


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                                           HB 743, First Engrossed



  1  electricians, lighting designers and operators, greensmen,

  2  prop managers and assistants, and grips), wardrobe (design,

  3  preparation, and management), hair and makeup (design,

  4  production, and application), performing (such as acting,

  5  dancing, and playing), designing and executing stunts,

  6  coaching, consulting, writing, scoring, composing,

  7  choreographing, script supervising, directing, producing,

  8  transmitting dailies, dubbing, mixing, editing, cutting,

  9  looping, printing, processing, duplicating, storing, and

10  distributing;

11         b.  The design, planning, engineering, construction,

12  alteration, repair, and maintenance of real or personal

13  property including stages, sets, props, models, paintings, and

14  facilities principally required for the performance of those

15  services listed in sub-subparagraph a.; and

16         c.  Property management services directly related to

17  property used in connection with the services described in

18  sub-subparagraphs a. and b.

19

20  This exemption will inure to the taxpayer upon presentation of

21  the certificate of exemption issued to the taxpayer under the

22  provisions of s. 288.1258.

23         10.  Leased, subleased, licensed, or rented to a person

24  providing food and drink concessionaire services within the

25  premises of a convention hall, exhibition hall, auditorium,

26  stadium, theater, arena, civic center, performing arts center,

27  recreational facility, or any business operated under a permit

28  issued pursuant to chapter 550.  A person providing retail

29  concessionaire services involving the sale of food and drink

30  or other tangible personal property within the premises of an

31  airport shall be subject to tax on the rental of real property


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                                           HB 743, First Engrossed



  1  used for that purpose, but shall not be subject to the tax on

  2  any license to use the property.  For purposes of this

  3  subparagraph, the term "sale" shall not include the leasing of

  4  tangible personal property.

  5         11.  Property occupied pursuant to an instrument

  6  calling for payments which the department has declared, in a

  7  Technical Assistance Advisement issued on or before March 15,

  8  1993, to be nontaxable pursuant to rule 12A-1.070(19)(c),

  9  Florida Administrative Code; provided that this subparagraph

10  shall only apply to property occupied by the same person

11  before and after the execution of the subject instrument and

12  only to those payments made pursuant to such instrument,

13  exclusive of renewals and extensions thereof occurring after

14  March 15, 1993.

15         Section 3.  Paragraph (b) of subsection (1) of section

16  212.06, Florida Statutes, is amended to read:

17         212.06  Sales, storage, use tax; collectible from

18  dealers; "dealer" defined; dealers to collect from purchasers;

19  legislative intent as to scope of tax.--

20         (1)

21         (b)  Except as otherwise provided, any person who

22  manufactures, produces, compounds, processes, or fabricates in

23  any manner tangible personal property for his or her own use

24  shall pay a tax upon the cost of the product manufactured,

25  produced, compounded, processed, or fabricated without any

26  deduction therefrom on account of the cost of material used,

27  labor or service costs, or transportation charges,

28  notwithstanding the provisions of s. 212.02 defining "cost

29  price."  However, the tax levied under this paragraph shall

30  not be imposed upon any person who manufactures or produces

31  electrical power or energy, steam energy, or other energy at a


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                                           HB 743, First Engrossed



  1  single location, when such power or energy is used directly

  2  and exclusively at such location, or at other locations if the

  3  energy is transferred through facilities of the owner in the

  4  operation of machinery or equipment that is used to

  5  manufacture, process, compound, produce, fabricate, or prepare

  6  for shipment tangible personal property for sale or to operate

  7  pollution control equipment, maintenance equipment, or

  8  monitoring or control equipment used in such operations.  The

  9  manufacture or production of electrical power or energy that

10  is used for space heating, lighting, office equipment, or

11  air-conditioning or any other nonmanufacturing, nonprocessing,

12  noncompounding, nonproducing, nonfabricating, or nonshipping

13  activity is taxable. Electrical power or energy consumed or

14  dissipated in the transmission or distribution of electrical

15  power or energy for resale is also not taxable.  Fabrication

16  labor shall not be taxable when a person is using his or her

17  own equipment and personnel, for his or her own account, as a

18  producer, subproducer, or coproducer of a qualified motion

19  picture.  For purposes of this chapter, the term "qualified

20  motion picture" means all or any part of a series of related

21  images, either on film, tape, or other embodiment, including,

22  but not limited to, all items comprising part of the original

23  work and film-related products derived therefrom as well as

24  duplicates and prints thereof and all sound recordings created

25  to accompany a motion picture, which is produced, adapted, or

26  altered for exploitation in, on, or through any medium or

27  device and at any location, primarily for entertainment,

28  commercial, industrial, or educational purposes. This

29  exemption for fabrication labor associated with production of

30  a qualified motion picture will inure to the taxpayer upon

31  presentation of the certificate of exemption issued to the


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                                           HB 743, First Engrossed



  1  taxpayer under the provisions of s. 288.1258. A person who

  2  manufactures factory-built buildings for his or her own use in

  3  the performance of contracts for the construction or

  4  improvement of real property shall pay a tax only upon the

  5  person's cost price of items used in the manufacture of such

  6  buildings.

  7         Section 4.  Paragraph (f) of subsection (5) and

  8  subsection (12) of section 212.08, Florida Statutes, are

  9  amended to read:

10         212.08  Sales, rental, use, consumption, distribution,

11  and storage tax; specified exemptions.--The sale at retail,

12  the rental, the use, the consumption, the distribution, and

13  the storage to be used or consumed in this state of the

14  following are hereby specifically exempt from the tax imposed

15  by this chapter.

16         (5)  EXEMPTIONS; ACCOUNT OF USE.--

17         (f)  Motion picture or video equipment used in motion

18  picture or television production activities and sound

19  recording equipment used in the production of master tapes and

20  master records.--

21         1.  Motion picture or video equipment and sound

22  recording equipment purchased or leased for use in this state

23  in production activities is exempt from the tax imposed by

24  this chapter upon an affirmative showing by the purchaser or

25  lessee to the satisfaction of the department that the

26  equipment will be used for production activities. The

27  exemption provided by this paragraph shall inure to the

28  taxpayer upon presentation of the certificate of exemption

29  issued to the taxpayer under the provisions of s. 288.1258.

30  only through a refund of previously paid taxes.

31  Notwithstanding the provisions of s. 212.095, such refund


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                                           HB 743, First Engrossed



  1  shall be made within 30 days of formal application, which

  2  application may be made after the completion of production

  3  activities or on a quarterly basis. Notwithstanding the

  4  provisions of chapter 213, the department shall provide the

  5  Department of Commerce with a copy of each refund application

  6  and the amount of such refund, if any.

  7         2.  For the purpose of the exemption provided in

  8  subparagraph 1.:

  9         a.  "Motion picture or video equipment" and "sound

10  recording equipment" includes only equipment meeting the

11  definition of "section 38 property" as defined in s.

12  48(a)(1)(A) and (B)(i) of the Internal Revenue Code that is

13  used by the lessee or purchaser exclusively as an integral

14  part of production activities; however, motion picture or

15  video equipment and sound recording equipment does not include

16  supplies, tape, records, film, or video tape used in

17  productions or other similar items; vehicles or vessels; or

18  general office equipment not specifically suited to production

19  activities.  In addition, the term does not include equipment

20  purchased or leased by television or radio broadcasting or

21  cable companies licensed by the Federal Communications

22  Commission.

23         b.  "Production activities" means activities directed

24  toward the preparation of a:

25         (I)  Master tape or master record embodying sound; or

26         (II)  Motion picture or television production which is

27  produced for theatrical, commercial, advertising, or

28  educational purposes and utilizes live or animated actions or

29  a combination of live and animated actions. The motion picture

30  or television production shall be commercially produced for

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                                           HB 743, First Engrossed



  1  sale or for showing on screens or broadcasting on television

  2  and may be on film or video tape.

  3         (12)  PARTIAL EXEMPTION; MASTER TAPES, RECORDS, FILMS,

  4  OR VIDEO TAPES.--

  5         (a)  There are exempt from the taxes imposed by this

  6  chapter the gross receipts from the sale or lease of, and the

  7  storage, use, or other consumption in this state of, master

  8  tapes or master records embodying sound, or master films or

  9  master video tapes; except that amounts paid to recording

10  studios or motion picture or television studios for the

11  tangible elements of such master tapes, records, films, or

12  video tapes are taxable as otherwise provided in this chapter.

13  This exemption will inure to the taxpayer upon presentation of

14  the certificate of exemption issued to the taxpayer under the

15  provisions of s. 288.1258.

16         (b)  For the purposes of this subsection, the term:

17         1.  "Amounts paid for the tangible elements" does not

18  include any amounts paid for the copyrightable, artistic, or

19  other intangible elements of such master tapes, records,

20  films, or video tapes, whether designated as royalties or

21  otherwise, including, but not limited to, services rendered in

22  producing, fabricating, processing, or imprinting tangible

23  personal property or any other services or production expenses

24  in connection therewith which may otherwise be construed as

25  constituting a "sale" under s. 212.02.

26         2.  "Master films or master video tapes" means films or

27  video tapes utilized by the motion picture and television

28  production industries in making visual images for

29  reproduction.

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                                           HB 743, First Engrossed



  1         3.  "Master tapes or master records embodying sound"

  2  means tapes, records, and other devices utilized by the

  3  recording industry in making recordings embodying sound.

  4         4.  "Motion picture or television studio" means a

  5  facility in which film or video tape productions or parts of

  6  productions are made and which contains the necessary

  7  equipment and personnel for this purpose and includes a mobile

  8  unit or vehicle that is equipped in much the same manner as a

  9  stationary studio and used in the making of film or video tape

10  productions.

11         5.  "Recording studio" means a place where, by means of

12  mechanical or electronic devices, voices, music, or other

13  sounds are transmitted to tapes, records, or other devices

14  capable of reproducing sound.

15         6.  "Recording industry" means any person engaged in an

16  occupation or business of making recordings embodying sound

17  for a livelihood or for a profit.

18         7.  "Motion picture or television production industry"

19  means any person engaged in an occupation or business for a

20  livelihood or for profit of making visual motion picture or

21  television visual images for showing on screen or television

22  for theatrical, commercial, advertising, or educational

23  purposes.

24         Section 5.  Effective July 1, 2000, paragraph (r) is

25  added to subsection (7) of section 213.053, Florida Statutes,

26  to read:

27         213.053  Confidentiality and information sharing.--

28         (7)  Notwithstanding any other provision of this

29  section, the department may provide:

30         (r)  Information relative to the tax exemptions under

31  ss. 212.031, 212.06, and 212.08 for those persons qualified


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                                           HB 743, First Engrossed



  1  under s. 288.1258 to the Office of the Film Commissioner. The

  2  Department of Revenue shall provide the Office of the Film

  3  Commissioner with information in the aggregate.

  4

  5  Disclosure of information under this subsection shall be

  6  pursuant to a written agreement between the executive director

  7  and the agency.  Such agencies, governmental or

  8  nongovernmental, shall be bound by the same requirements of

  9  confidentiality as the Department of Revenue.  Breach of

10  confidentiality is a misdemeanor of the first degree,

11  punishable as provided by s. 775.082 or s. 775.083.

12         Section 6.  Except as otherwise provided herein, this

13  act shall take effect January 1, 2001.

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31


                                  17