Senate Bill sb2302e1

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    CS for SB 2302                                 First Engrossed



  1                      A bill to be entitled

  2         An act relating to communications services;

  3         providing a short title; specifying the period

  4         during which the actual cost of operating a

  5         substitute communications system is exempt from

  6         the tax on communications services; providing

  7         legislative findings with respect to the

  8         provision of communications services by local

  9         governments; providing definitions; creating

10         the Government-Owned Communications Study

11         Commission to review the provision of

12         communications services by local governments;

13         providing for membership; requiring the study

14         commission to be staffed by the Legislature;

15         requiring a report be submitted to the Governor

16         and the Legislature; requiring local

17         governments that provide cable service to

18         comply with specified provisions; requiring

19         local governments that provide

20         telecommunications service or advanced service

21         to comply with certain provisions; prohibiting

22         a local government from requiring the use of

23         its communications services; prohibiting local

24         governments from pledging bond revenues for

25         specified purposes until a date certain;

26         requiring local governments to apply certain

27         ordinances, rules, and policies without

28         discrimination; creating the Florida

29         Telecommunications Policy Strategy Task Force;

30         locating the task force within the Florida

31         Public Service Commission for administrative


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    CS for SB 2302                                 First Engrossed



 1         purposes; providing for membership; authorizing

 2         reimbursement to members for travel and per

 3         diem expenses; specifying duties of the task

 4         force; providing for meetings; requiring the

 5         task force to provide a report to the Governor

 6         and the Legislature; amending s. 202.16, F.S.;

 7         providing requirements for dealers of taxable

 8         communications services when making a sale for

 9         resale which is exempt from taxation; providing

10         procedures for a dealer that makes recurring

11         sales in the normal course of business;

12         amending s. 202.19, F.S.; providing for the

13         local communications services tax to be in lieu

14         of certain fees and costs; amending s. 202.20,

15         F.S.; providing a limitation with respect to

16         the adjustment of the local communications

17         services tax; repealing s. 202.20(2)(a), F.S.,

18         relating to conversion rates for such tax;

19         amending s. 202.21, F.S., relating to tax

20         levies and rate changes; conforming provisions

21         to changes made by the act; specifying that

22         certain amendments made by the act are remedial

23         in nature and do not grant any right to a

24         refund of fees or charges paid before a

25         specified date; prohibiting certain rate

26         changes of the Florida Public Service

27         Commission from taking effect before a

28         specified date; providing for severability;

29         providing effective dates.

30  

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


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    CS for SB 2302                                 First Engrossed



 1         Section 1.  (1)  This section may be cited as the

 2  "Substitute Communications Systems Tax Relief Act."

 3         (2)  The taxes levied under sections 202.12(1),

 4  202.19(7), 202.15, and 203.01, Florida Statutes, shall not be

 5  levied on the actual cost of operating a substitute

 6  communications system, as defined in section 202.11, Florida

 7  Statutes, during the period from the effective date of this

 8  act through December 31, 2005.

 9         (3)  The Department of Revenue shall not make

10  assessments of tax on the costs of operating a substitute

11  communications system for the period October 1, 2001, through

12  the effective date of this act. No refunds shall be made of

13  any tax that has been remitted to the Department of Revenue on

14  the costs of operating a substitute communications system

15  prior to the effective date of this act.

16         Section 2.  (1)  The Legislature finds that it is the

17  policy of this state to ensure that local governments operate

18  on a level playing field with private providers of

19  communications services and that local governments should not

20  enjoy any undue advantages simply due to their status as a

21  local government.

22         (2)  The Legislature hereby provides notice to all

23  local governments in this state that in the ensuing year, the

24  Legislature shall conduct a study of the appropriate level of

25  state regulation for local governments wishing to offer

26  communications services in competition with private providers.

27  This study by the Legislature shall be comprehensive and shall

28  be considered for adoption during the 2005 Regular Session.

29  Any local government that is providing such services currently

30  or considering providing such services in the future is hereby

31  


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    CS for SB 2302                                 First Engrossed



 1  given notice of these legislative deliberations and should be

 2  prepared to comply with said legislation upon adoption.

 3         (3)  As used in this act, the term:

 4         (a)  "Local government" means any political

 5  subdivision, as defined in section 101.01, Florida Statutes,

 6  and any utility authority, other authority, board, branch,

 7  department, or unit thereof.

 8         (b)  "Advanced service" means high-speed Internet

 9  access service capability in excess of 144 kilobytes per

10  second in the upstream or the downstream directions, including

11  any service application provided over the high-speed access

12  service or any information services as defined in 47 U.S.C. s.

13  153(20).

14         (c)  "Communications services" include the offering of

15  any advanced service, cable service, or telecommunications

16  service, and shall be construed in the broadest sense.

17         (d)  "Cable service" has the same meaning as in 47

18  U.S.C. s. 522(6).

19         (e)  "Providing," with respect to a named service,

20  means offering or supplying a service for a fee to a person,

21  including any portion of the public or a local government or

22  private provider.

23         (f)  "Subscriber" means a person who receives a named

24  service.

25         (g)  "Telecommunications services" means the

26  transmission of signs, signals, writing, images, sounds,

27  messages, data, or other information of the user's choosing,

28  by wire, radio, light waves, or other electromagnetic means,

29  without change in the form or content of the information as

30  sent and received by the user and regardless of the facilities

31  used.


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    CS for SB 2302                                 First Engrossed



 1         (4)(a)  The Government-Owned Communications Study

 2  Commission is created. The study commission shall be composed

 3  of nine voting members, appointed as follows:

 4         1.  Four members appointed by the President of the

 5  Senate, at least two of whom shall be members of the Senate.

 6         2.  Four members appointed by the Speaker of the House

 7  of Representatives, at least two of whom shall be members of

 8  the House of Representatives.

 9         3.  One member shall be appointed by the Attorney

10  General.

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12  The nonlegislative members shall be knowledgeable regarding

13  one or more aspects of the provision of government-owned

14  communications services and shall include representatives from

15  both local government and industry.

16         (b)  The Legislature shall provide staffing for the

17  members of the study commission, whose meetings shall be

18  noticed and open to the public.

19         (c)  The study commission shall issue a report to the

20  Governor, the President of the Senate, and the Speaker of the

21  House of Representatives by January 15, 2005.

22         (d)  The study commission shall review any and all

23  regulatory, tax, competitive issues, and court decisions

24  related to the provision of communications services by any

25  local government in the State of Florida.

26         (5)  Any local government that provides a cable service

27  shall comply with section 166.046, Florida Statutes, and those

28  provisions of chapters 202, 212, and 337, Florida Statutes,

29  applicable to a provider of such services.

30         (6)  A local government that provides a

31  telecommunications service or advanced service shall comply,


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    CS for SB 2302                                 First Engrossed



 1  if applicable, with chapter 364, Florida Statutes, and rules

 2  adopted by the Florida Public Service Commission under section

 3  166.047, Florida Statutes, and those provisions of chapters

 4  202, 212, and 337, Florida Statutes, applicable to a provider

 5  of such services.

 6         (7)  The exercise of a local government's power or

 7  authority, including zoning or land use, to require the use by

 8  any person, including residents of a particular development,

 9  of any of the local government's communications services, is

10  prohibited.

11         (8)  A local government may not pledge any revenues in

12  support of the issuance of any bonds to be used to finance a

13  business venture outside the local government's geographical

14  boundaries in competition with providers for the provision of

15  communications services until July 1, 2005.

16         (9)  A local government shall apply the local

17  government's ordinances, rules, and policies, including those

18  relating to the following subjects, without discrimination as

19  to itself and any private provider of communications services:

20         (a)  Access to public rights-of-way; and

21         (b)  Permitting, access to, use of and payment for use

22  of local government-owned poles, such that the local

23  government shall be subject to the same terms, conditions, and

24  fees, if any, for access to governmental poles that the local

25  government applies to a private provider for such access.

26         Section 3.  (1)  The Florida Telecommunications Policy

27  Strategy Task Force is created and housed for administrative

28  purposes within the Florida Public Service Commission. The

29  task force shall operate independently of the commission.

30         (2)(a)  The task force shall consist of seven members,

31  three appointed by the Governor, two appointed by the


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    CS for SB 2302                                 First Engrossed



 1  President of the Senate, and two appointed by the Speaker of

 2  the House of Representatives. Members shall serve at the

 3  pleasure of the appointing official. Any vacancy shall be

 4  filled in the same manner as the original appointment.

 5         (b)  Any nonlegislative member shall possess expertise

 6  in state or national telecommunications policy, legal

 7  developments, and technical matters.

 8         (c)  A person who works directly for or who performs

 9  contract work for a telecommunications company or any entity

10  or agency that has appeared before the commission on a

11  docketed telecommunications matter in the past 6 years may not

12  be appointed to the task force.

13         (d)  Members shall serve without compensation but are

14  entitled to reimbursement of travel and per diem expenses

15  pursuant to section 112.061, Florida Statutes, relating to

16  completing their duties and responsibilities under this

17  section.

18         (3)  The task force shall:

19         (a)  Survey existing national and state regulatory,

20  rate, and tax policies relating to the telecommunications

21  industry;

22         (b)  Provide a concise presentation of the

23  telecommunications policy landscape; and

24         (c)  Identify and make recommendations relating to key

25  tax and regulatory issues that the Legislature and the Public

26  Service Commission should address, consistent with the

27  principles enumerated in subsection (4).

28         (4)  In conducting its investigations, deliberating,

29  and making recommendations, the task force shall consider the

30  following principles:

31  


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    CS for SB 2302                                 First Engrossed



 1         (a)  The state should explore policies that seek to

 2  promote the widest deployment of telecommunications

 3  technologies and thereby maximize access by residents of this

 4  state to the greatest variety of telecommunications service

 5  offerings and pricing options.

 6         (b)  Recommendations, if any, should be revenue neutral

 7  or revenue reducing; that is, revenues generated from

 8  telecommunications taxes in the aggregate should in no case

 9  exceed projected aggregate revenues if no changes in policies

10  are made.

11         (c)  Taxes and regulations should be applied equitably;

12  that is, government policies should not favor certain

13  technologies over others.

14         (d)  Government intervention should be avoided to the

15  greatest extent possible, except as necessary to ensure a

16  predictable, competitive telecommunications environment that

17  minimizes the likelihood of litigation and provides basic

18  consumer protections.

19         (e)  Competition should be encouraged among

20  telecommunications companies and among telecommunications

21  technologies.

22         (5)  The task force shall select a chair and vice chair

23  and shall meet at the call of the chair or as often as

24  necessary to accomplish the purposes of this section.

25         (6)  The task force shall hold its organizational

26  meeting by July 15, 2004, and thereafter shall meet as

27  necessary at the call of the chair at the time and place

28  designated by the chair. A quorum is necessary for the purpose

29  of conducting official business of the task force. The task

30  force shall use accepted rules of procedure to conduct its

31  meetings and shall keep a complete record of each meeting.


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    CS for SB 2302                                 First Engrossed



 1         (7)  The Florida Public Service Commission shall

 2  provide administrative support and staff for the task force.

 3         (8)  The task force shall prepare a report containing a

 4  summary of its investigations and deliberations and any

 5  recommendations and submit the report to the Governor, the

 6  President of the Senate, and the Speaker of the House of

 7  Representatives by January 15, 2005.

 8         Section 4.  Effective December 31, 2004, subsection (2)

 9  of section 202.16, Florida Statutes, is amended to read:

10         202.16  Payment.--The taxes imposed or administered

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

12  dealers of taxable communications services on the sale at

13  retail in this state of communications services taxable under

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

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

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

17  in the same manner as a cash sale.

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

19  as 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  


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

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

 3         (b)  Any dealer who makes a sale for resale shall

 4  document the exempt nature of the transaction, as established

 5  by rules adopted by the department, by retaining a copy of the

 6  purchaser's initial or annual resale certificate issued

 7  pursuant to s. 202.17(6). In lieu of maintaining a copy of the

 8  certificate, a dealer may document, prior to the time of sale,

 9  an authorization number provided telephonically or

10  electronically by the department, or by such other means

11  established by rule of the department. The dealer may rely on

12  an initial or annual resale certificate issued pursuant to s.

13  202.17(6), valid at the time of receipt from the purchaser,

14  without seeking additional annual resale certificates from

15  such purchaser, if the dealer makes recurring sales to the

16  purchaser in the normal course of business on a continual

17  basis. For purposes of this paragraph, the term "recurring

18  sales to a purchaser in the normal course of business" means a

19  sale in which the dealer extends credit to the purchaser and

20  records the debt as an account receivable, or in which the

21  dealer sells to a purchaser who has an established cash

22  account, similar to an open credit account. For purposes of

23  this paragraph, purchases are made from a selling dealer on a

24  continual basis if the selling dealer makes, in the normal

25  course of business, sales to the purchaser no less frequently

26  than once in every 12-month period. A dealer may, through the

27  informal protest provided for in s. 213.21 and the rules of

28  the Department of Revenue, provide the department with

29  evidence of the exempt status of a sale. Exemption

30  certificates executed by entities that were exempt at the time

31  of sale, resale certificates provided by purchasers who were


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    CS for SB 2302                                 First Engrossed



 1  active dealers at the time of sale, and verification by the

 2  department of a purchaser's active dealer status at the time

 3  of sale in lieu of a resale certificate shall be accepted by

 4  the department when submitted during the protest period, but

 5  may not be accepted in any proceeding under chapter 120 or any

 6  circuit court action instituted under chapter 72.

 7         Section 5.  Paragraph (a) of subsection (3) of section

 8  202.19, Florida Statutes, is amended to read:

 9         202.19  Authorization to impose local communications

10  services tax.--

11         (3)(a)  The tax authorized under this section includes

12  and is in lieu of any fee or other consideration, including,

13  but not limited to, application fees, transfer fees, renewal

14  fees, or claims for related costs, to which the municipality

15  or county is otherwise entitled for granting permission to

16  dealers of communications services, including, but not limited

17  to, providers of cable television services, as authorized in

18  47 U.S.C. s. 542, to use or occupy its roads or rights-of-way

19  for the placement, construction, and maintenance of poles,

20  wires, and other fixtures used in the provision of

21  communications services.

22         Section 6.  Subsection (2) of section 202.20, Florida

23  Statutes, is amended to read:

24         202.20  Local communications services tax conversion

25  rates.--

26         (2)(a)1.  With respect to any local taxing

27  jurisdiction, if, for the periods ending December 31, 2001;

28  March 31, 2002; June 30, 2002; or September 30, 2002, the

29  revenues received by that local government from the local

30  communications services tax imposed under subsection (1) are

31  less than the revenues received from the replaced revenue


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    CS for SB 2302                                 First Engrossed



 1  sources for the corresponding 2000-2001 period; plus

 2  reasonably anticipated growth in such revenues over the

 3  preceding 1-year period, based on the average growth of such

 4  revenues over the immediately preceding 5-year period; plus an

 5  amount representing the revenues from the replaced revenue

 6  sources for the 1-month period that the local taxing

 7  jurisdiction was required to forego, the governing authority

 8  may adjust the rate of the local communications services tax

 9  upward to the extent necessary to generate the entire

10  shortfall in revenues within 1 year after the rate adjustment

11  and by an amount necessary to generate the expected amount of

12  revenue on an ongoing basis.

13         2.  If complete data are not available at the time of

14  determining whether the revenues received by a local

15  government from the local communications services tax imposed

16  under subsection (1) are less than the revenues received from

17  the replaced revenue sources for the corresponding 2000-2001

18  period, as set forth in subparagraph 1., the local government

19  shall use the best data available for the corresponding

20  2000-2001 period in making such determination.

21         3.  The adjustment permitted under subparagraph 1. may

22  be made by emergency ordinance or resolution and may be made

23  notwithstanding the maximum rate established under s.

24  202.19(2) and notwithstanding any schedules or timeframes or

25  any other limitations contained in this chapter. The authority

26  to make such adjustment may only be exercised in the event of

27  a reallocation of revenue away from the local government by

28  the Department of Revenue or a dealer. The emergency ordinance

29  or resolution shall specify an effective date for the adjusted

30  rate, which shall be no less than 60 days after the date of

31  adoption of the ordinance or resolution and shall be effective


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    CS for SB 2302                                 First Engrossed



 1  with respect to taxable services included on bills that are

 2  dated on the first day of a month subsequent to the expiration

 3  of the 60-day period. At the end of 1 year following the

 4  effective date of such adjusted rate, the local governing

 5  authority shall, as soon as is consistent with s. 202.21,

 6  reduce the rate by that portion of the emergency rate which

 7  was necessary to recoup the amount of revenues not received

 8  prior to the implementation of the emergency rate.

 9         4.  If, for the period October 1, 2001, through

10  September 30, 2002, the revenues received by a local

11  government from the local communications services tax

12  conversion rate established under subsection (1), adjusted

13  upward for the difference in rates between paragraphs (1)(a)

14  and (b) or any other rate adjustments or base changes, are

15  above the threshold of 10 percent more than the revenues

16  received from the replaced revenue sources for the

17  corresponding 2000-2001 period plus reasonably anticipated

18  growth in such revenues over the preceding 1-year period,

19  based on the average growth of such revenues over the

20  immediately preceding 5-year period, the governing authority

21  must adjust the rate of the local communications services tax

22  to the extent necessary to reduce revenues to the threshold by

23  emergency ordinance or resolution within the timeframes

24  established in subparagraph 3.  The foregoing rate adjustment

25  requirement shall not apply to a local government that adopts

26  a local communications services tax rate by resolution or

27  ordinance.  If complete data are not available at the time of

28  determining whether the revenues exceed the threshold, the

29  local government shall use the best data available for the

30  corresponding 2000-2001 period in making such determination.

31  This subparagraph shall not be construed as establishing a


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 1  right of action for any person to enforce this subparagraph or

 2  challenge a local government's implementation of this

 3  subparagraph.

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

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

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

 7  extent that the respective local taxing jurisdictions were

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

 9         1.  With respect to municipalities and charter counties

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

11         a.  The public service tax on telecommunications

12  authorized by former s. 166.231(9).

13         b.  Franchise fees on cable service providers as

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

15         c.  The public service tax on prepaid calling

16  arrangements.

17         d.  Franchise fees on dealers of communications

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

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

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

21  charter counties be treated as having had the same authority

22  as municipalities to impose franchise fees on recurring local

23  telecommunication service revenues prior to July 1, 2000.

24  However, the Legislature recognizes that the authority of

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

26  treatment provided in this section is not an expression of

27  legislative intent that charter counties actually do or do not

28  possess such authority.

29         e.  Actual permit fees relating to placing or

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

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


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 1  communications services for the fiscal year ending September

 2  30, 1999; however, if a municipality or charter county elects

 3  the option to charge permit fees pursuant to s.

 4  337.401(3)(c)1.a., such fees shall not be included as a

 5  replaced revenue source.

 6         2.  With respect to all other counties and the taxes

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

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

 9         Section 7.  Effective July 1, 2007, paragraph (a) of

10  subsection (2) of section 202.20, Florida Statutes, is

11  repealed.

12         Section 8.  Effective July 1, 2007, section 202.21,

13  Florida Statutes, is amended to read:

14         202.21  Effective dates; procedures for informing

15  dealers of communications services of tax levies and rate

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

17  local communications services tax imposed under s. 202.19 is

18  effective with respect to taxable services included on bills

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

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

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

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

23  September 1 immediately preceding such January 1. Notification

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

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

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

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

28  municipality or county to respond to inquiries concerning the

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

30  repeal, or change to all affected dealers of communications

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


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    CS for SB 2302                                 First Engrossed



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

 2  communications services tax by emergency ordinance or

 3  resolution pursuant to s. 202.20(2) shall notify the

 4  department of the new tax rate immediately upon its adoption.

 5  The department shall provide written notice of the adoption of

 6  the new rate to all affected dealers within 30 days after

 7  receiving such notice. In any notice to providers or

 8  publication of local tax rates for purposes of this chapter,

 9  the department shall express the rate for a municipality or

10  charter county as the sum of the tax rates levied within such

11  jurisdiction pursuant to s. 202.19(2)(a) and (5), and shall

12  express the rate for any other county as the sum of the tax

13  rates levied pursuant to s. 202.19(2)(b) and (5). The

14  department is not liable for any loss of or decrease in

15  revenue by reason of any error, omission, or untimely action

16  that results in the nonpayment of a tax imposed under s.

17  202.19.

18         Section 9.  The amendments to section 202.19(3)(a),

19  Florida Statutes, contained in this act are remedial in nature

20  and intended to clarify the law in effect on October 1, 2001,

21  but will not grant any right to a refund of any fees or

22  charges paid prior to July 1, 2004, unless the payment was

23  made under written protest as to the authority of any local

24  government to impose such fees or costs on a dealer.

25         Section 10.  Any rate changes authorized by the Florida

26  Public Service Commission's decision of December 24, 2003, in

27  Docket Nos. 030867-TL, 030868-TL, 030869-TL, and 030961-TI

28  granting petitions filed pursuant to section 364.164(1),

29  Florida Statutes, shall not take effect before May 10, 2005.

30  Nothing contained in this act shall be construed to defer or

31  otherwise interfere with the timely resolution of any pending


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    CS for SB 2302                                 First Engrossed



 1  commission or court proceeding addressing commission decisions

 2  issued pursuant to section 364.164(1), Florida Statutes.

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

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

 5  invalidity does not affect other provisions or applications of

 6  the act which can be given effect without the invalid

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

 8  this act are severable.

 9         Section 12.  Except as otherwise expressly provided in

10  this act, this act shall take effect upon becoming a law.

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