Florida Senate - 2008 SB 2790

By Senator Deutch

30-03441C-08 20082790__

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A bill to be entitled

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An act relating to cigarette user fees; providing

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legislative findings; amending s. 210.01, F.S.; defining

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the terms "council," "total collections," and "net

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collections"; revising the definitions of "exporter,"

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"unstamped package," "stamp" or "stamps," and "counterfeit

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cigarettes"; amending s. 210.02, F.S.; replacing all

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references to the term tax with user fee; increasing the

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amount of the cigarette user fee; amending ss. 210.021,

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210.03, 210.04, 210.05, 210.06, 210.07, 210.08, 210.09,

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210.11, 210.12, 210.13, 210.14, 210.15, 210.18, 210.181,

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210.185, and 210.19,F.S.; conforming provisions to changes

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made by the act; amending s. 210.20, F.S.; providing

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definitions; requiring the Division of Alcoholic Beverages

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and Tobacco to certify to the Chief Financial Officer the

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amount of net collections derived from the user fee on a

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monthly basis; requiring the division to credit a specific

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percent of the total base allocation to certain trust

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funds, the H. Lee Moffitt Cancer Center and Research

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Institute's Board of Directors, the William G. "Bill"

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Bankhead, Jr., and David Coley Cancer Research Program,

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and certain medical residency and fellowship programs;

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providing legislative intent to use the cigarette user fee

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collections to increase enrollment in the Florida Kidcare

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program; requiring that the amounts credited or

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transferred from the Cigarette Tax Collection Trust Fund

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be adjusted in proportion to the corresponding reference

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year allocation; providing a formula for calculating the

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maximum total supplemental allocation; amending s.

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210.201, F.S.; requiring the Board of Directors of the H.

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Lee Moffitt Cancer Center and Research Institute to use

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funds to secure bonds or financial products for cancer

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facilities; amending s. 215.5602, F.S.; requiring the

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James and Esther King Biomedical Research Program to

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appropriate a certain percent of the program's annual

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funding to expand research conducted on tobacco-related

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illnesses; increasing the amount of funds allocated to the

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Florida Center for Universal Research to Eradicate

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Disease; extending certain expiration dates; amending s.

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381.922, F.S.; revising the purpose of the William G.

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"Bill" Bankhead, Jr., and David Coley Cancer Research

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Program to expand cancer research and treatment; requiring

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the program to provide grants for the recruitment of

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cancer researchers and institutions, operational start-up

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grants for newly recruited researchers, and for fixed

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capital outlay; requiring that certain proceeds be used

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for certain purposes; extending certain expiration dates;

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amending s. 395.701, F.S.; defining the term "relative

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share"; providing that a hospital's relative share

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credited or transferred from the Cigarette Tax Collections

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Trust Fund to the Public Medical Assistance Trust Fund are

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not included in the annual assessment on net operating

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revenues for inpatient and outpatient services; repealing

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s. 395.7015, F.S; relating to the annual assessment on

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health care entities; requiring the Department of Health

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to submit a report to the Governor and the Legislature by

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a certain date which contains an estimate of the financial

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impact of tobacco use and related illnesses on the economy

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and taxpayers; providing an effective date.

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

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     Section 1. The Legislature finds that cigarette consumption

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dramatically impacts the state's Medicaid budget and a

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substantial deficit has been created between what consumers pay

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in related excise or privilege fees and what the state actually

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incurs in health care costs. The Legislature further finds that

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the imposition of a user fee on cigarettes should at least be

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commensurate with the projected governmental costs associated

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with the consumption of cigarettes. The Legislature further finds

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that revenues derived from such user fees should apply to health

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care, with an emphasis given to measures for which there is a

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connection between cigarette consumption and the user fee revenue

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generated from the consumption of cigarettes.

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     Section 2.  Section 210.01, Florida Statutes, is amended to

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read:

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     210.01  Definitions.--When used in this part the following

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words shall have the meaning herein indicated:

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     (1)  "Cigarette" means any roll for smoking, except one of

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which the tobacco is fully naturally fermented, without regard to

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the kind of tobacco or other substances used in the inner roll or

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the nature or composition of the material in which the roll is

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wrapped, which is made wholly or in part of tobacco irrespective

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of size or shape and whether such tobacco is flavored,

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adulterated or mixed with any other ingredient.

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     (2)  "Persons" means any individual, copartnership, society,

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club, association, corporation, joint stock company, and any

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combination of individuals and also an executor, administrator,

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receiver, trustee or other fiduciary.

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     (3)  "Sale" means any transfer, exchange or barter in any

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manner, or by any means whatever.

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     (4)  "Retail sale" or "sale at retail" means a sale to a

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consumer or to any person for any purpose other than resale.

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     (5)  "Dealer" means any wholesale dealer as hereinafter

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defined.

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     (6)  "Wholesale dealer" means any person located inside or

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outside this state who sells cigarettes to retail dealers or

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other persons for purposes of resale only. Such term shall not

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include any cigarette manufacturer, export warehouse proprietor,

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or importer with a valid permit under 26 U.S.C. s. 5712 if such

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person sells or distributes cigarettes in this state only to

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dealers who are agents and who hold valid and current permits

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under s. 210.15 or to any cigarette manufacturer, export

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warehouse proprietor, or importer who holds a valid and current

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permit under 26 U.S.C. s. 5712.

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     (7)  "Retail dealer" means any person located inside or

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outside this state other than a wholesale dealer engaged in the

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business of selling cigarettes, including persons issued a permit

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pursuant to s. 569.003.

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     (8)  "Package" means the individual package, box or other

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container in or from which retail sales of cigarettes are

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normally made or intended to be made.

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     (9)  "Agent" means any person authorized by the Division of

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Alcoholic Beverages and Tobacco to purchase and affix adhesive or

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meter stamps under this part.

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     (10)  "Division" means the Division of Alcoholic Beverages

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and Tobacco of the Department of Business and Professional

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Regulation.

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     (11) "Council" means the Biomedical Research Advisory

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Council within the Department of Health established in s.

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215.5602.

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     (12)(11) "Use" means the consuming, giving away or

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disposing, in any manner, of cigarettes.

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     (13)(12) "First sale" means the first use or consumption of

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cigarettes within this state.

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     (14)(13) "Operating ad valorem millage" means all millages

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other than those fixed for debt service.

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(15) "Total collections" means the total amount

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derived from the cigarette user fee during a specified

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period of time.

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     (16) "Net collections" means 99.1 percent of total

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collections less the service charge prescribed in s. 215.20.

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     (17)(14) "Distributing agent" means every person, firm or

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corporation in this state who acts as an agent for any person,

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firm or corporation outside or inside the state by receiving

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cigarettes in interstate or intrastate commerce and storing such

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cigarettes subject to distribution or delivery upon order from

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said principal to wholesale dealers and other distributing agents

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inside or outside this state.

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     (18)(15) "Place of business" means any place where

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cigarettes are sold or where cigarettes are stored or kept for

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the purpose of sale or consumption; or if cigarettes are sold

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from a vending machine the place in which the vending machine is

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located.

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     (19)(16) "Manufacturer's representative" means a person who

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represents a manufacturer of cigarettes but who has no place of

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business in this state where cigarettes are stored. A

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manufacturer's representative is required to obtain any

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cigarettes required by her or him through a wholesale dealer in

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this state and to make such reports as may be required by the

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Division of Alcoholic Beverages and Tobacco of the Department of

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Business and Professional Regulation.

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     (20)(17) "Exporter" means a person who transports user-fee-

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exempt or tax-exempt cigarettes into this state under bond for

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delivery beyond the borders of this state. Each permit shall

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entitle the permittee to store such cigarettes under bond at one

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location in this state pending shipment beyond the borders of

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this state.

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     (21)(18) "Unstamped package" or "unstamped cigarettes"

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means a package on which the user fee tax required by this part

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has not been paid, regardless of whether or not such package is

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stamped or marked with the indicia of any other user fee

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assessment or taxing authority, or a package on which there has

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been affixed a counterfeit or fraudulent indicium or stamp.

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     (22)(19) "Stamp" or "stamps" means the indicia required to

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be placed on cigarette packages that evidence payment of the user

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fee tax on cigarettes under s. 210.02.

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     (23)(20) "Importer" means any person with a valid permit

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under 26 U.S.C. s. 5712 who imports into the United States,

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directly or indirectly, a finished cigarette for sale or

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distribution.

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     (24)(21) "Manufacturer" means any domestic person or entity

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with a valid permit under 26 U.S.C. s. 5712 that manufactures,

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fabricates, assembles, processes, or labels a finished cigarette.

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     (25)(22) "Counterfeit cigarettes" means cigarettes that

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have false manufacturing labels, tobacco product packs with

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counterfeit user fee tax stamps, or any combination thereof.

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     Section 3.  Section 210.02, Florida Statutes, is amended to

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read:

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     210.02 Cigarette user fee tax imposed; collection.--

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     (1) A user fee An excise or privilege tax, in addition to

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all other fees taxes of every kind imposed by law, is imposed

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upon the sale, receipt, purchase, possession, consumption,

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handling, distribution, and use of cigarettes in this state, in

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the following amounts, except as hereinafter otherwise provided,

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for cigarettes of standard dimensions:

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

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thousand, 66.95 16.95 mills on each cigarette.

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

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thousand and not more than 6 inches long, 133.9 33.9 mills on

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each cigarette.

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

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thousand and more than 6 inches long, 267.8 67.8 mills on each

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cigarette.

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     (2)  The description of cigarettes contained in paragraphs

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(a), (b), and (c) of subsection (1) are hereby declared to be

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standard as to dimensions for the taxing purposes of assessing a

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user fee as provided in this law and should any cigarette be

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received, purchased, possessed, sold, offered for sale, given

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away, or used of a size other than of standard dimensions, the

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same shall be assessed taxed at the rate of 5.69 1.41 cents on

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each such cigarette.

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

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packed in varying quantities of 20 cigarettes or less, except

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manufacturer's free samples authorized under s. 210.04(9), the

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following rate shall govern:

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     (a)  Packages containing 10 cigarettes or less require a

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66.9-cent user fee 16.95-cent tax.

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     (b)  Packages containing more than 10 but not more than 20

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cigarettes require a 133.9-cent user fee 33.9-cent tax.

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

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packed in varying quantities of 20 cigarettes or less, except

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manufacturer's free samples authorized under s. 210.04(9), the

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following rates shall govern:

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     (a)  Packages containing 10 cigarettes or less require a

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133.9-cent user fee 33.9-cent tax.

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     (b)  Packages containing more than 10 but not more than 20

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cigarettes require a 267.8-cent user fee 67.8-cent tax.

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

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packed in varying quantities of 20 cigarettes or less, except

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manufacturer's free samples authorized under s. 210.04(9), the

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following rates shall govern:

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     (a)  Packages containing 10 cigarettes or less require a

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267.8-cent user fee 67.8-cent tax.

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     (b)  Packages containing more than 10 but not more than 20

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cigarettes require a 535.6-cent user fee 135.6-cent tax.

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     (6) This user fee tax shall be paid by the dealer to the

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division for deposit and distribution as hereinafter provided

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

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not such sale or transfer be to the ultimate purchaser or

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consumer. The seller or dealer shall collect the user fee tax

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from the purchaser or consumer, and the purchaser or consumer

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shall pay the user fee tax to the seller. The seller or dealer

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shall be responsible for the collection of the user fee tax and

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the payment of the same to the division. All user fees collected

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pursuant to this section taxes are due not later than the 10th

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day of the month following the calendar month in which they were

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incurred, and thereafter shall bear interest at the rate of 1

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percent per month. If the amount of user fee proceeds tax due for

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a given period is assessed without allocating it to any

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

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assessment. Whenever cigarettes are shipped from outside the

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state to anyone other than a distributing agent or wholesale

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dealer, the person receiving the cigarettes shall be responsible

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for the user fee tax on said cigarettes and the payment of same

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to the division.

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     (7) It is the legislative intent that the user fee tax on

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cigarettes shall be uniform throughout the state.

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     Section 4.  Section 210.021, Florida Statutes, is amended to

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read:

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     210.021 Payment of user fees taxes by certified check or

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electronic funds transfer.--

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     (1)  The Secretary of Business and Professional Regulation

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may require a dealer who sells cigarettes within the state to

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remit by certified check or electronic funds transfer any user

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fee tax imposed under s. 210.02.

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     (2)  The Secretary of Business and Professional Regulation

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shall require for a period not to exceed 12 months that a dealer

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or agent, during the dealer's or agent's initial period of

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licensure or appointment, remit by certified check or electronic

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funds transfer any user fee tax imposed under s. 210.02.

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     (3)  The division shall adopt rules pursuant to ss.

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120.536(1) and 120.54 to administer this section.

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     Section 5.  Section 210.03, Florida Statutes, is amended to

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read:

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     210.03 Prohibition against levying of cigarette user fees

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taxes by municipalities.--No municipality shall, after July 1,

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1972, levy or collect any user fee excise tax on cigarettes.

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     Section 6.  Section 210.04, Florida Statutes, is amended to

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read:

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     210.04  Construction; exemptions; collection.--

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     (1) The amount of user fees taxes advanced and paid to the

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state aforesaid shall be added to and collected as a part of the

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sales price of the cigarettes sold or distributed, which amount

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may be stated separately from the price of the cigarettes on all

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display signs, sales and delivery slips, bills and statements

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which advertise or indicate the price of the product.

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     (2) The cigarette user fee tax imposed shall be collected

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only once upon the same package or container of such cigarettes.

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     (3) No user fee tax shall be imposed by this part upon

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cigarettes not within the taxing power of the state under the

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Commerce Clause of the United States Constitution.

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     (4) No user fee tax shall be required to be paid:

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     (a)  Upon cigarettes sold at post exchanges, ship service

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stores, ship stores, slop chests, or base exchanges to members of

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the Armed Services of the United States when such post exchanges,

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ship service stores, or base exchanges are operated under

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regulations of the Army, Navy, or Air Force of the United States

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on military, naval, or air force reservations in this state or

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when such ship stores or slop chests are operated under the

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regulations of the United States Navy on ships of the United

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States Navy; however, it is unlawful for anyone, including

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members of the Armed Services of the United States, to purchase

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such user-fee-exempt or tax-exempt cigarettes for purposes of

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resale. Any person who resells, or offers for resale, user-fee-

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exempt or tax-exempt cigarettes purchased at post exchanges, ship

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service stores, ship stores, slop chests, or base exchanges is

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guilty of a violation of the cigarette user fee tax law,

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punishable as provided in s. 210.18(1).

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     (b)  Upon the sale or gift of cigarettes by charitable

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organizations to bona fide patients in regularly established

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government veterans' hospitals in Florida for the personal use or

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consumption of such patients.

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     (5)  It shall be presumed that all cigarettes are subject to

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the user fee tax imposed by this part until the contrary is

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established, and the burden of proof that they are not assessable

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taxable shall be upon the person having possession of them.

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     (6)  The sale of single or loose unpacked cigarettes is

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prohibited. The division may authorize any person to give away

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sample packages of cigarettes, each to contain not less than two

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cigarettes upon which the user fees taxes have been paid.

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     (7)  Nothing in this part shall be construed to prohibit the

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sale of cigarettes, upon which the user fee tax has been

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advanced, through the medium of vending machines where the user

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fee tax is collected by the said vending machines.

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     (8)  Except as hereinafter provided, all agents shall be

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liable for the collection and payment of the user fee tax imposed

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by this part and shall pay the user fee tax to the division by

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purchasing, under such regulations as it shall prescribe,

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adhesive stamps of such design and denominations as it shall

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prescribe.

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     (9)  Agents, located within or without the state, shall

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purchase stamps and affix such stamps in the manner prescribed to

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packages or containers of cigarettes to be sold, distributed, or

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given away within the state, in which case any dealer

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subsequently receiving such stamped packages of cigarettes will

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not be required to purchase and affix stamps on such packages of

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cigarettes. However, the division may, in its discretion,

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authorize manufacturers to distribute in the state free sample

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packages of cigarettes containing not less than 2 or more than 20

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cigarettes without affixing any user fee tax stamps provided

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copies of shipping invoices on such cigarettes are furnished, and

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payment of all user fees taxes imposed on such cigarettes by law

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is made, directly to the division not later than the 10th day of

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each calendar month. The user fee tax on cigarettes in sample

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packages shall be based on a unit in accordance with the

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assessment taxing provisions of s. 210.02(1).

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     Section 7.  Section 210.05, Florida Statutes, is amended to

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read:

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     210.05  Preparation and sale of stamps; discount.--

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     (1) The user fee tax imposed by this part shall be paid by

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affixing stamps in the manner herein set forth or by affixing

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stamp insignia through the device of metering machines authorized

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in this part.

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     (2)  The division shall prescribe, prepare, and furnish

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stamps of such denominations and quantities as may be necessary

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for the payment of the user fee tax imposed by this part, and may

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from time to time and as often as it deems advisable provide for

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the issuance and exclusive use of stamps of a new design and

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forbid the use of stamps of any other design. However, all stamps

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prescribed by the division must be designed and furnished in a

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fashion that permits identification of the agent or wholesale

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dealer that affixed the stamp to the particular package of

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cigarettes by means of a serial number or other mark on the

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stamp. The division shall make provisions for the sale of such

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stamps at such places and at such time as it may deem necessary.

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     (3)(a)  The division may appoint dealers in cigarettes,

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manufacturers of cigarettes, within or without the state as agent

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to buy or affix stamps to be used in paying the user fee tax

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herein imposed, but an agent shall at all times have the right to

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appoint a person in his or her employ who is to affix the stamps

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to any cigarettes under the agent's control; provided, however,

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that any wholesale dealer in the state shall have the right to

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buy and affix such stamps. Whenever the division shall sell and

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deliver to any such agent or wholesaler any such stamps, such

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agent or wholesaler shall be entitled to receive as compensation

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for his or her services and expenses as such agent or wholesaler

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in affixing and accounting for the user fees taxes represented by

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such stamps and to retain out of the moneys to be paid by the

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agent or wholesaler for such stamps a discount of 2 percent of

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the par value of any amount of stamps purchased during any fiscal

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year from July 1 through June 30 of the following year, provided

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the discount shall be computed on the basis of 24 cents per pack.

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No such discount shall be allowed to a dealer, vendor, or

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distributor who sells or deals in any form of candy which

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resembles drug paraphernalia. Stamping locations approved by the

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division shall be responsible for computing the discount they

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receive pursuant to this paragraph, and said computations shall

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be retained by the stamping location for a period of 5 years and

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shall be available to the division. All stamps purchased from the

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division under this part shall be paid for in cash on delivery,

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except as hereinafter provided.

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     (b)  Each agent appointed by the division to affix stamps

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shall be authorized to purchase stamps by furnishing an

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irrevocable letter of credit or unconditional guaranty contract

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or by executing bond with a solvent surety company qualified to

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do business in this state, in an amount of 110 percent of the

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agent's estimated user fee tax liability for 30 days, but not

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less than $2,000, conditioned upon said agent paying all user

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fees taxes due the state arising hereunder. This form of payment

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in lieu of cash on delivery or its equivalent shall not preclude

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supplemental purchases for cash. Payment for each month's

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liability shall be due on or before the 10th day of the month

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following the month in which the stamps were sold. Default in the

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aforesaid bonding and payment provisions by any agent may result

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in the revocation of his or her privilege to purchase stamps

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except for cash on delivery for a period up to 12 months in the

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discretion of the division.

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     (4)  The division may in its discretion revoke the authority

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of any agent failing to comply with the requirements of this part

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or the rules and regulations promulgated hereunder and such agent

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may in addition be punished in accordance with the provisions of

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this part.

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     (5)  Agents or wholesale dealers may sell stamped but

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unassessed untaxed cigarettes to the Seminole Indian Tribe, or to

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members thereof, for retail sale. Agents or wholesale dealers

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shall treat such cigarettes and the sale thereof in the same

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manner, with respect to reporting and stamping, as other sales

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under this part, but agents or wholesale dealers shall not

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collect from the purchaser the user fee tax imposed by s. 210.02.

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The purchaser hereunder shall be responsible to the agent or

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wholesale dealer for the services and expenses incurred in

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affixing the stamps and accounting therefor.

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     Section 8.  Section 210.06, Florida Statutes, is amended to

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read:

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     210.06  Affixation of stamps; presumption.--

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     (1)  Every dealer within the state shall affix or cause to

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be affixed to such package or container of such cigarettes such

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stamps as are required under this section within 10 days after

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receipt of such products. Dealers outside this state shall affix

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such stamps before the shipment of cigarettes into this state.

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     (a) A user fee tax stamp shall be applied to all cigarette

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packages intended for sale or distribution to consumers subject

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to the user fee tax imposed under s. 210.02, except as otherwise

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provided in this part.

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     (b)  No stamp shall be applied to any cigarette package

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exempt from a user fee or tax under 26 U.S.C. s. 5704 that is

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distributed by a manufacturer pursuant to federal regulations.

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     (c)  Dealers may apply stamps only to cigarette packages

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received directly from a manufacturer or importer of cigarettes,

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or a distributing agent representing a manufacturer or importer

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of cigarettes, who possesses a valid and current permit under

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this part.

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     (2)  Each retail dealer shall open such box, carton or other

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container of cigarettes prior to exposing for sale or selling

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such cigarettes and examine the packages contained therein for

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the purpose of ascertaining whether or not the said packages have

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affixed thereto the proper user fee tax stamp. If unstamped or

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improperly stamped packages of cigarettes are discovered, the

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retail dealer shall immediately notify the dealer from whom said

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cigarettes were purchased. Upon such notification, the dealer

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from whom said cigarettes were purchased shall replace such

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unstamped or improperly stamped packages of cigarettes with those

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upon which stamps have been properly affixed, or immediately

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affix thereto the proper amount of stamps.

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     (3)  Whenever any cigarettes are found in the place of

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business of any such retail dealer, or in the possession of any

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other person without the stamps affixed, the presumption shall be

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that such cigarettes are kept in violation of the provisions of

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this law.

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     (4)  Stamps shall be affixed to each package of cigarettes

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of an aggregate denomination not less than the amount of the user

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fee tax upon the contents therein, and shall be affixed in such

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manner as to be visible to the purchaser. All stamps shall be

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affixed in the manner prescribed by the division. The state may

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not impose an additional charge on stamps for printing costs.

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     (5)  Except as provided in s. 210.04(9) or s. 210.09(1), no

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person, other than a dealer or distributing agent that receives

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unstamped cigarette packages directly from a cigarette

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manufacturer or importer in accordance with this section and s.

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210.085, shall hold or possess an unstamped cigarette package.

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Dealers shall be permitted to set aside, without application of

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stamps, only such part of the dealer's stock that is identified

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for sale or distribution outside this state. If a dealer

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maintains stocks of unstamped cigarette packages, such unstamped

466

packages shall be stored separately from stamped product

467

packages. No unstamped cigarette packages shall be transferred by

468

a dealer to another facility of the dealer within this state or

469

to another person within this state.

470

     Section 9.  Section 210.07, Florida Statutes, is amended to

471

read:

472

     210.07  Metering machines.--

473

     (1)(a) The user fee tax may also be paid through the use of

474

cigarette user fee tax stamp insignia to be applied by the use of

475

metering machines. The division shall prescribe and promulgate

476

appropriate rules and regulations governing the use of metering

477

machines, the procedure for the payment of such cigarette user

478

fees taxes through the use thereof, requiring adequate surety

479

bonds of the users thereof to assure the proper use of such

480

machines and payment of all cigarette user fees taxes that might

481

come due by the users thereof, and all other rules and

482

regulations necessary and proper to govern the use of same.

483

     (b)  The provisions of s. 210.05(3)(a) and (b) shall be

484

applicable to cigarette user fees taxes paid through the use of

485

metering machines.

486

     (2)  All provisions of this part governing the use of

487

cigarette user fee tax stamps, the compiling of records, the

488

making of reports, permits and revocation of permits, seizures

489

and forfeitures, penalties, and all other provisions pertaining

490

to the payment of cigarette user fees taxes through the use of

491

stamps, shall likewise be applicable to the payment of said user

492

fees taxes through the use of metering machines.

493

     (3)  Wholesale or retail dealers of cigarettes owning,

494

leasing, furnishing, or operating cigarette vending machines

495

shall affix to each such machine, in a conspicuous place, an

496

identification sticker furnished by the division. Every sticker

497

shall show the vending machine serial number and the name and

498

address of the cigarette wholesale or retail dealer owning,

499

leasing, furnishing, or operating said vending machine.

500

     (4)  No vending machine shall be allowed to operate in the

501

state that does not have affixed thereto the identification

502

sticker required by this section nor shall any vending machine be

503

allowed to operate in the state that does not display at all

504

times at least one package of each brand of the packages located

505

therein so the same are clearly visible and arranged in such a

506

manner that the cigarette user fee tax stamps or meter

507

impressions of stamps affixed thereto are clearly visible. It

508

shall be the duty of any person, firm or corporation operating a

509

cigarette vending machine in this state to furnish the division

510

the location of the vending machine and to report within 30 days

511

to the division any change of location of the vending machine.

512

     Section 10.  Section 210.08, Florida Statutes, is amended to

513

read:

514

     210.08 Bond for payment of user fees taxes.--Each dealer,

515

agent, or distributing agent shall file with the division a

516

surety bond, certificate of deposit, or irrevocable letter of

517

credit acceptable to the division in an amount equal to 110

518

percent of the estimated user fee tax liability for 30 days, but

519

not less than $2,000.

520

     Section 11.  Subsections (2) and (3) of section 210.09,

521

Florida Statutes, are amended to read:

522

     210.09  Records to be kept; reports to be made;

523

examination.--     

524

     (2)  The division is authorized to prescribe and promulgate

525

by rules and regulations, which shall have the force and effect

526

of the law, such records to be kept and reports to be made to the

527

division by any manufacturer, importer, distributing agent,

528

wholesale dealer, retail dealer, common carrier, or any other

529

person handling, transporting or possessing cigarettes for sale

530

or distribution within the state as may be necessary to collect

531

and properly distribute the user fees taxes imposed by s. 210.02.

532

All reports shall be made on or before the 10th day of the month

533

following the month for which the report is made, unless the

534

division by rule or regulation shall prescribe that reports be

535

made more often.

536

     (3)  All manufacturers, importers, distributing agents,

537

wholesale dealers, agents, or retail dealers shall maintain and

538

keep for a period of 3 years at the place of business where any

539

transaction takes place, such records of cigarettes received,

540

sold, or delivered within the state as may be required by the

541

division. The division or its duly authorized representative is

542

hereby authorized to examine the books, papers, invoices, and

543

other records, the stock of cigarettes in and upon any premises

544

where the same are placed, stored, and sold, and the equipment of

545

any such manufacturers, importers, distributing agents, wholesale

546

dealers, agents, or retail dealers, pertaining to the sale and

547

delivery of cigarettes assessable taxable under this part. To

548

verify the accuracy of the user fee tax imposed and assessed by

549

this part, each person is hereby directed and required to give to

550

the division or its duly authorized representatives the means,

551

facilities, and opportunity for such examinations as are herein

552

provided for and required.

553

     Section 12.  Section 210.11, Florida Statutes, is amended to

554

read:

555

     210.11 Refunds; sales of stamps and payment of user fee

556

tax.--Whenever any cigarettes upon which stamps have been placed,

557

or upon which the user fee tax has been paid by metering machine,

558

have been sold and shipped into another state for sale or use

559

therein, or have become unfit for use and consumption or

560

unsalable, or have been destroyed, the dealer involved shall be

561

entitled to a refund or credit of the actual amount of the user

562

fee tax paid with respect to such cigarettes less any discount

563

allowed by the division in the sale of the stamps or payment of

564

the user fee tax by metering machine, upon receipt of

565

satisfactory evidence of the dealer's right to receive such

566

refund or credit, provided application for refund or credit is

567

made within 9 months of the date the cigarettes were shipped out

568

of the state, became unfit, or were destroyed. Only the division

569

shall sell, or offer for sale, any stamp or stamps issued under

570

this part. The division may redeem unused stamps lawfully in the

571

possession of any person. The division may prescribe necessary

572

rules and regulations concerning refunds, credits, sales of

573

stamps, and redemptions under the provisions of this part.

574

Appropriation is hereby made out of revenues collected under this

575

part for payment of such allowances.

576

     Section 13.  Section 210.13, Florida Statutes, is amended to

577

read:

578

     210.13 Determination of user fee tax on failure to file a

579

return.--If a dealer fails to file any return required under this

580

part, or having filed an incorrect or insufficient return, fails

581

to file a correct or sufficient return, as the case may require,

582

within 10 days after the giving of notice to the dealer by the

583

Division of Alcoholic Beverages and Tobacco that such return or

584

corrected or sufficient return is required, the division shall

585

determine the amount of user fee tax due by such dealer any time

586

within 3 years after the making of the earliest sale included in

587

such determination and give written notice of such determination

588

to such dealer. Such a determination shall finally and

589

irrevocably fix the user fee tax unless the dealer against whom

590

it is assessed shall, within 30 days after the giving of notice

591

of such determination, apply to the division for a hearing.

592

Judicial review shall not be granted unless the amount of the

593

user fee tax stated in the decision, with penalties thereon, if

594

any, shall have been first deposited with the division, and an

595

undertaking or bond filed in the court in which such cause may be

596

pending in such amount and with such sureties as the court shall

597

approve, conditioned that if such proceeding be dismissed or the

598

decision of the division confirmed, the applicant for review will

599

pay all costs and charges which may accrue against the applicant

600

in the prosecution of the proceeding. At the option of the

601

applicant, such undertaking or bond may be in an additional sum

602

sufficient to cover the user fees tax, penalties, costs, and

603

charges aforesaid, in which event the applicant shall not be

604

required to pay such user fees tax and penalties precedent to the

605

granting of such review by such court.

606

     Section 14.  Section 210.14, Florida Statutes, is amended to

607

read:

608

     210.14 Warrant for collection of user fees taxes.--

609

     (1)  In addition to all other remedies for the collection of

610

any user fees taxes due under the provisions of this part, the

611

division may issue a warrant under its official seal, which

612

warrant may be filed by the division in the office of the clerk

613

of the circuit court of any county where the delinquent person

614

taxpayer owns property. Upon presentation of the warrant, the

615

clerk of the circuit court shall enter it in the judgment docket.

616

The name of the person mentioned in the warrant, the amount of

617

the user fee tax and penalties for which the warrant was issued,

618

and the date such copy was filed shall be included in the record

619

of the warrant. The clerk shall be allowed the same fees as are

620

allowed by law for similar services rendered in judgment

621

execution proceedings. The warrant issued by the division may

622

then be directed to the sheriff of any county commanding that

623

sheriff to levy upon and sell the goods and chattels of the

624

specified delinquent person found within the sheriff's

625

jurisdiction, for the payment of the amount of such delinquency

626

plus a penalty equal to 50 percent of the amount thereof, and

627

interest on the total at 1 percent per month and the cost of

628

executing the warrant, and to return such warrant to the division

629

and to pay it the money collected by virtue thereof within 60

630

days after receipt of such warrant.

631

     (2)  The amount of the warrant docketed pursuant to

632

subsection (1) shall become a lien upon the title to or the

633

interest in real or personal property of the person against whom

634

the warrant is issued. The sheriff to whom any such warrant is

635

directed shall proceed upon the warrant in all respects and with

636

like effect and in the same manner as prescribed by law in

637

respect to executions issued against goods and chattels upon

638

judgments by a court of record, and the sheriff shall be entitled

639

to the same fees for his or her services in executing the warrant

640

to be collected in the same manner.

641

     (3)  In the discretion of the division, a warrant of like

642

terms, force, and effect may be issued and directed to any

643

officer or employee of the division; and in the execution thereof

644

such officer or employee shall have all the power conferred by

645

law upon sheriffs, but shall be entitled to no fee or

646

compensation in excess of the actual expenses paid in the

647

performance of such duty. If a warrant is returned not satisfied

648

in full, the division may from time to time issue new warrants

649

and shall also have the same remedies to enforce the amount due

650

thereunder as if the state had recovered judgment therefor and

651

execution thereon had been returned satisfied.

652

     Section 15.  Paragraphs (c) and (h) of subsection (1), and

653

subsection (2) of section 210.15, Florida Statutes, are amended

654

to read:

655

     210.15  Permits.--

656

     (1)

657

     (c)  No permit under this part or chapter 569 shall be

658

issued, maintained, or renewed if the applicant, its officers, or

659

any person or persons owning directly or indirectly, in the

660

aggregate, more than 10 percent of the ownership interests in the

661

applicant:

662

     1.  Has been finally adjudicated as owing $500 or more in

663

delinquent cigarette user fees taxes;

664

     2.  Had a permit revoked by the division within the previous

665

2 years;

666

     3.  Has been convicted of selling stolen or counterfeit

667

cigarettes, receiving stolen cigarettes, or being involved in the

668

counterfeiting of cigarettes;

669

     4.  Has been convicted within the past 5 years of any

670

offense against the cigarette laws of this state or convicted in

671

this state, any other state, or the United States during the past

672

5 years of any offense designated as a felony by such state or

673

the United States, or to a corporation, any of whose officers

674

have been so convicted. The term "convicted" shall include an

675

adjudication of guilt on a plea of guilty or a plea of nolo

676

contendere, or the forfeiture of a bond when charged with a

677

crime;

678

     5.  Has imported, or caused to be imported, into the United

679

States any cigarette in violation of 19 U.S.C. s. 1681a; or

680

     6.  Has imported, or caused to be imported, into the United

681

States, or manufactured for sale or distribution in the United

682

States, any cigarette that does not fully comply with the Federal

683

Cigarette Labeling and Advertising Act (15 U.S.C. ss. 1331 et

684

seq.).

685

     (h)  No retail sales of cigarettes may be made at a location

686

for which a wholesale dealer, distributing agent, or exporter

687

permit has been issued. The user fee excise tax on sales made to

688

any traveling location, such as an itinerant store or industrial

689

caterer, shall be paid into the General Revenue Fund unallocated.

690

Cigarettes may be purchased for retail purposes only from a

691

person holding a wholesale dealer permit. The invoice for the

692

purchase of cigarettes must show the place of business for which

693

the purchase is made and the cigarettes cannot be transferred to

694

any other place of business for the purpose of resale.

695

     (2)  The division may not furnish stamps or approve the use

696

of meter machines to evidence the payment of the user fees taxes

697

on cigarettes except to qualified wholesale dealers.     

698

     Section 16.  Section 210.18, Florida Statutes, is amended to

699

read:

700

     210.18 Penalties for user fee tax evasion; reports by

701

sheriffs.--

702

     (1)  Any person who possesses or transports any unstamped

703

packages of cigarettes upon the public highways, roads, or

704

streets in the state for the purpose of sale; or who sells or

705

offers for sale unstamped packages of cigarettes in violation of

706

the provisions of this part; or who willfully attempts in any

707

manner to evade or defeat any user fee tax imposed by this part,

708

or the payment thereof, is guilty of a misdemeanor of the first

709

degree, punishable as provided in s. 775.082 or s. 775.083. Any

710

person who has been convicted of a violation of any provision of

711

the cigarette user fee tax law and who is thereafter convicted of

712

a further violation of the cigarette user fee tax law is, upon

713

conviction of such further offense, guilty of a felony of the

714

third degree, punishable as provided in s. 775.082, s. 775.083,

715

or s. 775.084.

716

     (2)  Except as otherwise provided in this section, any

717

person who fails, neglects, or refuses to comply with, or

718

violates the provisions of, this part or the rules adopted by the

719

division under this part commits a misdemeanor of the first

720

degree, punishable as provided in s. 775.082 or s. 775.083. Any

721

person who has been convicted of a violation of any provision of

722

the cigarette user fee tax law and who is thereafter convicted of

723

a further violation of the cigarette user fee tax law is, upon

724

conviction of such further offense, guilty of a felony of the

725

third degree, punishable as provided in s. 775.082, s. 775.083,

726

or s. 775.084.

727

     (3)  Any person who falsely or fraudulently makes, forges,

728

alters, or counterfeits any stamp or impression die used in meter

729

machines prescribed by the division under the provisions of this

730

part; or, with intent to evade user fees taxes, jams, tampers

731

with, or alters such a machine; or causes or procures to be

732

falsely or fraudulently made, forged, altered, or counterfeited

733

any such stamp or die; or knowingly and willfully utters,

734

purchases, passes or tenders as true any such false, altered, or

735

counterfeited stamp or die impression; or, with the intent to

736

defraud the state, fails to comply with any other requirement of

737

this part commits a felony of the third degree, punishable as

738

provided in s. 775.082, s. 775.083, or s. 775.084.

739

     (4)(a)  Any person or corporation that owns or is in

740

possession of any cigarettes upon which a user fee tax is imposed

741

by the cigarette law, or would be imposed if such cigarettes were

742

manufactured in or brought into this state in accordance with the

743

regulatory provisions of the cigarette law, and upon which such

744

user fee tax has not been paid is, in addition to the fines and

745

penalties otherwise provided in the cigarette law, personally

746

liable for the amount of the user fee tax imposed on such

747

cigarettes; and the division may collect such user fee tax from

748

such person or corporation by suit or by restitution if the

749

person taxpayer is convicted, found guilty, or pleads nolo

750

contendere or guilty to any crime under this chapter. This

751

paragraph is applicable even if adjudication is withheld.

752

     (b)  This subsection does not apply to a manufacturer or

753

distributor licensed under the cigarette law, to a state bonded

754

warehouse, or to a person possessing not in excess of three

755

cartons of such cigarettes, which cigarettes were purchased by

756

such possessor outside the state in accordance with the laws of

757

the place where purchased and brought into this state by such

758

possessor. The burden of proof that such cigarettes were

759

purchased outside the state and in accordance with the laws of

760

the place where purchased shall in all cases be upon the

761

possessor of such cigarettes.

762

     (5)(a) All cigarettes on which user fees taxes are imposed

763

by the cigarette law, or would be imposed if such cigarettes were

764

manufactured in or brought into this state in accordance with the

765

regulatory provisions of such law, which are found in the

766

possession or custody or within the control of any person for the

767

purpose of being sold or removed by him or her in fraud of the

768

cigarette law or with design to evade payment of such user fees

769

taxes may be seized by the division or any supervisor, sheriff,

770

deputy sheriff, or other law enforcement agent and shall be

771

forfeited to the state.

772

     (b)  This subsection does not apply to a person possessing

773

not in excess of three cartons of cigarettes, which cigarettes

774

were purchased by such possessor outside the state in accordance

775

with the laws of the place where purchased and brought into this

776

state by such possessor.

777

     (6)(a)  Every person, firm, or corporation, other than a

778

licensee under the provisions of this part, who possesses,

779

removes, deposits, or conceals, or aids in the possessing,

780

removing, depositing, or concealing of, any unstamped cigarettes

781

not in excess of 50 cartons is guilty of a misdemeanor of the

782

second degree, punishable as provided in s. 775.082 or s.

783

775.083. In lieu of the penalties provided in those sections,

784

however, the person, firm, or corporation may pay the user fee

785

tax plus a penalty equal to the amount of the user fee tax

786

authorized under s. 210.02 on the unstamped cigarettes.

787

     (b)  Every person, firm, or corporation, other than a

788

licensee under the provisions of this part, who possesses,

789

removes, deposits, or conceals, or aids in the possessing,

790

removing, depositing, or concealing of, any unstamped cigarettes

791

in excess of 50 cartons is presumed to have knowledge that they

792

have not been assessed the user fee taxed and is guilty of a

793

felony of the third degree, punishable as provided in s. 775.082,

794

s. 775.083, or s. 775.084.

795

     (c)  This section does not apply to a person possessing not

796

in excess of three cartons of such cigarettes purchased by such

797

possessor outside the state in accordance with the laws of the

798

place where purchased and brought into this state by such

799

possessor. The burden of proof that such cigarettes were

800

purchased outside the state and in accordance with the laws of

801

the place where purchased shall in all cases be upon the

802

possessor of such cigarettes.

803

     (7)  Any sheriff, deputy sheriff, police officer, or state

804

law enforcement officer, upon the seizure of any unstamped

805

cigarettes under this section, shall promptly report such seizure

806

to the division or its representative, together with a

807

description of all such unstamped cigarettes seized, so that the

808

state may be kept informed as to the size and magnitude of the

809

illicit cigarette business. The division shall keep records

810

showing the number of seizures and seized cigarettes reported to,

811

or seized by, the division.

812

     (8)(a)  It is unlawful for any person to conspire with any

813

other person or persons to do any act in violation of the

814

provisions of this part, when any one or more of such persons

815

does or commits any act to effect the object of the conspiracy.

816

     (b)  Any person who violates the provisions of this

817

subsection:

818

     1.  If the act conspired to be done would constitute a

819

misdemeanor, is guilty of a misdemeanor of the second degree,

820

punishable as provided in s. 775.082 or s. 775.083.

821

     2.  If the act conspired to be done would constitute a

822

felony, is guilty of a felony of the third degree, punishable as

823

provided in s. 775.082, s. 775.083, or s. 775.084.

824

     (9)  Notwithstanding any other provision of law, the sale or

825

possession for sale of counterfeit cigarettes by any person or by

826

a manufacturer, importer, distributing agent, wholesale dealer,

827

or retail dealer shall result in the seizure of the product and

828

related machinery by the division or any law enforcement agency.

829

     (10)  It is unlawful to sell or possess with the intent to

830

sell counterfeit cigarettes, as defined in s. 210.01(22).

831

     (a)  A person who does not hold a permit or holds a retail

832

permit under the provisions of this chapter and who violates this

833

subsection commits a felony of the third degree, punishable as

834

provided in s. 775.082, s. 775.083, or s. 775.084, and is subject

835

to the imposition of fines and additional penalties as follows:

836

     1.  If the quantity of counterfeit cigarettes sold or

837

possessed with the intent to sell is less than two cartons or the

838

equivalent, the fine for a first violation shall not exceed

839

$1,000 or five times the retail value of the counterfeit

840

cigarettes, whichever is greater. A subsequent violation may

841

result in the imposition of a fine not to exceed $5,000 or five

842

times the retail value of the counterfeit cigarettes, whichever

843

is greater, and shall result in revocation of the retail permit

844

by the division.

845

     2.  If the quantity of counterfeit cigarettes sold or

846

possessed with the intent to sell is two cartons or more or the

847

equivalent, the fine for a first violation shall not exceed

848

$2,000 or five times the retail value of the counterfeit

849

cigarettes, whichever is greater. A subsequent violation may

850

result in the imposition of a fine not to exceed $50,000 or five

851

times the retail value of the counterfeit cigarettes, whichever

852

is greater, and shall result in revocation of the retail permit

853

by the division.

854

     (b)  A person who holds a permit, other than a retail

855

permit, under the provisions of this chapter and who violates

856

this subsection commits a felony of the third degree, punishable

857

as provided in s. 775.082, s. 775.083, or s. 775.084, and is

858

subject to the imposition of fines and additional penalties as

859

follows:

860

     1.  If the quantity of counterfeit cigarettes sold or

861

possessed with the intent to sell is less than 10 cartons or the

862

equivalent, the fine for a first violation shall not exceed

863

$1,000 or five times the retail value of the counterfeit

864

cigarettes, whichever is greater. A subsequent violation may

865

result in the imposition of a fine not to exceed $5,000 or five

866

times the retail value of the counterfeit cigarettes, whichever

867

is greater, and shall result in revocation of the permit by the

868

division.

869

     2.  If the quantity of counterfeit cigarettes sold or

870

possessed with the intent to sell is 10 cartons or more or the

871

equivalent, the fine for a first violation shall not exceed

872

$2,000 or five times the retail value of the counterfeit

873

cigarettes, whichever is greater. A subsequent violation may

874

result in the imposition of a fine not to exceed $50,000 or five

875

times the retail value of the counterfeit cigarettes, whichever

876

is greater, and shall result in revocation of the permit by the

877

division.

878

879

For purposes of this subsection, any counterfeit cigarettes

880

seized by the division shall be destroyed.

881

     Section 17.  Subsection (2) of section 210.181, Florida

882

Statutes, is amended to read:

883

     210.181  Civil penalties.--     

884

     (2) Whoever fails to pay any user fee tax imposed by this

885

part at the time prescribed by law or rules shall, in addition to

886

any other penalty provided in this part, be liable for a penalty

887

of five times the unpaid user fees tax due.

888

     Section 18.  Subsection (2) and paragraph (c) of subsection

889

(6) of section 210.185, Florida Statutes, are amended to read:

890

     210.185  Prohibition on sale or distribution of cigarettes;

891

criminal penalties; administrative sanctions; applicability.--

892

     (2)  DOCUMENTATION.--On or before the 10th day of each

893

month, each person permitted to affix the user fee tax stamp to

894

cigarettes shall file with the division, for all cigarettes

895

imported into the United States to which the person has affixed

896

the user fee tax stamp in the preceding month, a copy of the

897

permit issued under the Internal Revenue Code, 26 U.S.C. s. 5713,

898

to the person importing the cigarettes into the United States

899

which allows that person to import those cigarettes; a copy of

900

the customs form containing, with respect to the cigarettes, the

901

internal revenue tax information required by the United States

902

Bureau of Alcohol, Tobacco and Firearms; and a statement, signed

903

by an officer of the manufacturer or importer under penalty of

904

perjury, certifying that the manufacturer or importer has

905

complied with the package health warning and ingredient reporting

906

requirements of the Federal Cigarette Labeling and Advertising

907

Act, 15 U.S.C. ss. 1333 and 1335a, with respect to those

908

cigarettes.     

909

     (6)  GENERAL PROVISIONS.--

910

     (c)  In addition to any other remedy provided by law,

911

including enforcement as provided in paragraph (a), any person

912

may bring an action for appropriate injunctive or other equitable

913

relief for a violation of this section; for actual damages, if

914

any, sustained by reason of the violation; and, as determined by

915

the court, for interest on the damages from the date of the

916

complaint, assessable taxable costs, and reasonable attorney's

917

fees. If the trier of fact finds that the violation is flagrant,

918

it may increase recovery to an amount not in excess of 3 times

919

the actual damages sustained by reason of the violation.

920

     Section 19.  Section 210.19, Florida Statutes, is amended to

921

read:

922

     210.19  Records to be kept by division.--The division shall

923

keep records showing the total amount of user fees taxes

924

collected, which records shall be open to the public during the

925

regular office hours of the division. The division shall maintain

926

records that identify which agent or wholesale dealer affixed the

927

user fee tax stamp to each package of cigarettes. The identifying

928

records must be made available for public inspection and retained

929

for at least 3 years.

930

     Section 20.  Subsection (2) of section 210.20, Florida

931

Statutes, is amended to read:

932

     210.20  Employees and assistants; distribution of funds.--

933

     (2)(a) For purposes of this subsection, the term:

934

     1. "Agency" means the Agency for Health Care

935

Administration.

936

     2. "Cigarette user fee" means the user fee imposed by s.

937

210.02.

938

     3. "Council" means the Biomedical Research Advisory Council

939

within the Department of Health as established in s. 215.5602.

940

     4. "Reference year" means July 1, 2007, to June 30, 2008.

941

     5. "Total collections" means the total amount derived from

942

the cigarette user fee during a specified period of time.

943

     6. "Net collections" means 99.1 percent of the total

944

collections less the service charges provided for in s. 215.20.

945

     7. "Reference year allocation" means the total amount

946

credited or transferred from the Cigarette Tax Collection Trust

947

Fund to a particular trust fund or the General Revenue Fund

948

during the reference year divided by 12.

949

     8. "Total base allocation" means, for a given month, 8.333

950

percent of the average of the projected net collections for the

951

fiscal year containing such month, based on the most recent

952

estimates generated by a Revenue Estimating Conference convened

953

pursuant to s. 216.136(3), or net collections for such month,

954

whichever is less.

955

     (b) As collections are received by the division from the

956

user fee on cigarettes such cigarette taxes, it shall pay the

957

same into a trust fund in the State Treasury designated

958

"Cigarette Tax Collection Trust Fund." which shall be paid and

959

distributed as follows:

960

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

961

the Chief Financial Officer the amount of net collections derived

962

from the cigarette user fee tax imposed by s. 210.02, less the

963

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

964

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

965

which shall be deposited into the Alcoholic Beverage and Tobacco

966

Trust Fund, specifying the amounts to be transferred from the

967

Cigarette Tax Collection Trust Fund and credited on the following

968

bases; however, the division shall first deposit monthly into the

969

Alcoholic Beverage and Tobacco Trust Fund an amount equal to the

970

sum of 0.9 percent of total collections and the service charge on

971

total collection provided for in s. 215.20 as follows:

972

     1. The sum of 0.8218 percent basis of 2.9 percent of the

973

total base allocation net collections to the Revenue Sharing

974

Trust Fund for Counties for distribution pursuant to the Florida

975

Revenue Sharing Act.

976

     2. The sum of 8.4551 percent and 29.3 percent of the total

977

base allocation to the Public Medical Assistance Trust Fund net

978

collections for the funding of indigent health care pursuant to

979

s. 409.918 to the Public Medical Assistance Trust Fund.

980

     3. The sum of 20.1247 percent of the total base allocation

981

in fiscal year 2008-2009 to the Public Medical Assistance Trust

982

Fund to offset the assessment levied on the annual net operating

983

revenue for inpatient and outpatient services provided by

984

hospitals pursuant to s. 395.701, as such assessment existed on

985

January 1, 2008. In subsequent fiscal years, an equivalent amount

986

shall be transferred to the Public Medical Assistance Trust for

987

such purpose, regardless of the amount of net collections.

988

     4. The sum of 1.5 percent of the total base allocation to

989

the H. Lee Moffitt Cancer Center and Research Institute

990

established in s. 1004.43, which shall be paid on a monthly basis

991

to the center's Board of Directors by warrant drawn by the Chief

992

Financial Officer upon the State Treasury. The revenues derived

993

from this allocation are separate and distinct from any funds

994

allocated to the H. Lee Moffitt Cancer Center through the James

995

and Esther King Biomedical Research Program or the Bankhead-Coley

996

Cancer Research Program. Funds derived pursuant this subparagraph

997

are to be used for the purpose of constructing, furnishing, and

998

equipping cancer research, treatment, and related facilities. The

999

appropriation to the H. Lee Moffitt Cancer Center and Research

1000

Institute authorized by this subparagraph shall not be less than

1001

the amount that would have been paid to the H. Lee Moffitt and

1002

Cancer Research Institute for fiscal year 2006-2007 had this

1003

subparagraph been in effect.

1004

     5. The sum of 5.9179 percent of the total base allocation

1005

to the Biomedical Research Trust Fund for distribution by the

1006

Biomedical Research Advisory Council to grantees of the James and

1007

Esther King Biomedical Research Program authorized pursuant to s.

1008

215.5602 and the Bankhead-Coley Cancer Research Program

1009

authorized pursuant to s. 381.922, with such programs dividing

1010

equally the allocation derived from this subparagraph. The

1011

provisions of ss. 215.5602 and 381.922 shall determine the

1012

methods of distribution under the respective programs.

1013

     6. The sum of 18.5013 percent of the total base allocation

1014

to the Medical Care Trust Fund for the funding of the Medically

1015

Needy program established pursuant to 42 U.S.C. ss. 1396(a) and

1016

(d) and 409.904(2).

1017

     7.     The sum of 18.5013 percent of the total base allocation

1018

to the Medical Care Trust Fund for the funding of annual

1019

adjustments to fee reimbursements made to physicians for services

1020

provided under the Medicaid program so that Medicaid

1021

reimbursement rates are made to equal the Medicare reimbursement

1022

rates as such rates existed on January 1, 2008.

1023

     8. The sum of 4.5194 percent of the total base allocation

1024

to the Medical Care Trust Fund for the funding of children's

1025

health care coverage through the Florida Kidcare program

1026

established in ss. 409.810-409.820. It is the intent of the

1027

Legislature to use cigarette user fee collections to increase

1028

enrollment of previously uninsured children in the Florida

1029

Kidcare program and minimize disruption of such coverage for

1030

children at risk for involuntary or premature disenrollment from

1031

the program. Therefore, for the purposes of this subparagraph,

1032

such credits shall be made each month to the Medical Care Trust

1033

Fund as follows:

1034

     a. A percentage of the total base allocation shall first be

1035

credited to fund efforts to ensure appropriate retention of

1036

coverage by, and prevention of, the involuntary or premature

1037

disenrollment from coverage for children enrolled in the Florida

1038

Kidcare program during any month in which such children are not

1039

subject to disenrollment under the laws and policies in effect,

1040

but would have been subject to disenrollment if the laws and

1041

policies governing the Florida Kidcare program in effect on June

1042

30, 2008, had remained in effect during such month. The

1043

percentage shall be determined by the agency for each fiscal year

1044

based on the estimated amount needed to fully fund such retention

1045

and prevention efforts, except that such percentage shall not

1046

exceed one-tenth of the allocation in this subparagraph and shall

1047

remain fixed throughout the fiscal year.

1048

     b. A percentage of the total base allocation shall next be

1049

credited to fund the coverage of children who are enrolled in the

1050

Florida Kidcare program and covered under Title XXI of the Social

1051

Security Act during any month. The percentage shall be determined

1052

by the agency based on the estimated amount needed to fund

1053

coverage for a number of children equal to the number enrolled in

1054

the Florida Kidcare program and covered under Title XXI of the

1055

Social Security Act during such month, as certified to the Chief

1056

Financial Officer by the agency less the number of children

1057

similarly enrolled and covered as of June 30, 2008. Such

1058

percentage shall not exceed a percentage equal to 4.5194 percent

1059

less the percentage established pursuant to sub-subparagraph 8.a.

1060

     9. The sum of 3.4 percent of the total base allocation for

1061

the funding of medical residency and fellowship programs, as

1062

determined by the Legislature, with primary emphasis given to the

1063

establishment of residencies in the fields of oncology,

1064

cardiology, and pulmonary medicine.

1065

     (b)1. Beginning January 1, 1999, and continuing for 10

1066

years thereafter, the division shall from month to month certify

1067

to the Chief Financial Officer the amount derived from the

1068

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

1069

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

1070

derived from the cigarette tax imposed by s. 210.02, which shall

1071

be deposited into the Alcoholic Beverage and Tobacco Trust Fund,

1072

specifying an amount equal to 2.59 percent of the net

1073

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

1074

Directors of the H. Lee Moffitt Cancer Center and Research

1075

Institute, established under s. 1004.43, by warrant drawn by the

1076

Chief Financial Officer upon the State Treasury. These funds are

1077

hereby appropriated monthly out of the Cigarette Tax Collection

1078

Trust Fund, to be used for the purpose of constructing,

1079

furnishing, and equipping a cancer research facility at the

1080

University of South Florida adjacent to the H. Lee Moffitt Cancer

1081

Center and Research Institute. In fiscal years 1999-2000 and

1082

thereafter with the exception of fiscal year 2008-2009, the

1083

appropriation to the H. Lee Moffitt Cancer Center and Research

1084

Institute authorized by this subparagraph shall not be less than

1085

the amount that would have been paid to the H. Lee Moffitt Cancer

1086

Center and Research Institute for fiscal year 1998-1999 had

1087

payments been made for the entire fiscal year rather than for a

1088

6-month period thereof.

1089

     2. Beginning July 1, 2002, and continuing through June 30,

1090

2004, the division shall, in addition to the distribution

1091

authorized in subparagraph 1., from month to month certify to the

1092

Chief Financial Officer the amount derived from the cigarette tax

1093

imposed by s. 210.02, less the service charges provided for in s.

1094

215.20 and less 0.9 percent of the amount derived from the

1095

cigarette tax imposed by s. 210.02, which shall be deposited into

1096

the Alcoholic Beverage and Tobacco Trust Fund, specifying an

1097

amount equal to 0.2632 percent of the net collections, and that

1098

amount shall be paid to the Board of Directors of the H. Lee

1099

Moffitt Cancer Center and Research Institute, established under

1100

s. 1004.43, by warrant drawn by the Chief Financial Officer.

1101

Beginning July 1, 2004, and continuing through June 30, 2016, the

1102

division shall, in addition to the distribution authorized in

1103

subparagraph 1., from month to month certify to the Chief

1104

Financial Officer the amount derived from the cigarette tax

1105

imposed by s. 210.02, less the service charges provided for in s.

1106

215.20 and less 0.9 percent of the amount derived from the

1107

cigarette tax imposed by s. 210.02, which shall be deposited into

1108

the Alcoholic Beverage and Tobacco Trust Fund, specifying an

1109

amount equal to 1.47 percent of the net collections, and that

1110

amount shall be paid to the Board of Directors of the H. Lee

1111

Moffitt Cancer Center and Research Institute, established under

1112

s. 1004.43, by warrant drawn by the Chief Financial Officer.

1113

These funds are appropriated monthly out of the Cigarette Tax

1114

Collection Trust Fund, to be used for the purpose of

1115

constructing, furnishing, and equipping a cancer research

1116

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

1117

Lee Moffitt Cancer Center and Research Institute. In fiscal years

1118

2004-2005 and thereafter, the appropriation to the H. Lee Moffitt

1119

Cancer Center and Research Institute authorized by this

1120

subparagraph shall not be less than the amount that would have

1121

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

1122

Institute in fiscal year 2001-2002, had this subparagraph been in

1123

effect.

1124

     (d) During any month, the total amount credited or

1125

transferred from the Cigarette Tax Collection Trust Fund for any

1126

of the uses provided in subparagraph (c)1., subparagraph (c)2.,

1127

or subparagraph (c)4. may not be less than the corresponding

1128

reference year allocation, otherwise, all other amounts to be

1129

transferred or credited pursuant to paragraph (c) must be reduced

1130

proportionately by the minimum amount necessary so that a

1131

reassignment of the total reduction amounts proportionately

1132

increases the amounts to be credited or transferred pursuant to

1133

subparagraph (c)1., subparagraph (c)2., or subparagraph (c)4. to

1134

their corresponding reference year allocation levels, except that

1135

if the sum of all reference year allocations exceeds the total

1136

base allocation, credits or transfers shall be made only for the

1137

latter three purposes in relatively proportionate amounts.

1138

     (e) If the total base allocation for a particular month

1139

exceeds the total base allocation for any previous month within

1140

the same fiscal year, the amounts to be credited or transferred

1141

for each of the purposes described in paragraph (c) shall be

1142

increased proportionately, subject to the availability of

1143

appropriations; however, the total supplemental allocation may

1144

not exceed an amount in accordance with the formula: SA = M x

1145

TBA(c) - TBA(i), where:

1146

     1. "SA" is the maximum total supplemental allocation for

1147

the current month.

1148

     2. "M" is the number of prior months in the current fiscal

1149

year.

1150

     3. "TBA(c)" is the total base allocation for the current

1151

month.

1152

     4. "TBA(i)" is the sum of total base allocations for all of

1153

the prior months in the current fiscal year.

1154

     Section 21.  Section 210.201, Florida Statutes, is amended

1155

to read:

1156

     210.201 Cancer facilities research facility at the

1157

University of South Florida; establishment; funding.--The Board

1158

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

1159

Institute shall construct, furnish, and equip, and shall covenant

1160

to complete, the cancer research facility at the University of

1161

South Florida adjacent to the H. Lee Moffitt Cancer Center and

1162

Research Institute. Moneys transferred to the Board of Directors

1163

of the H. Lee Moffitt Cancer Center and Research Institute

1164

pursuant to s. 210.20 shall be used to secure financing to pay or

1165

secure bonds or financial products issued or incurred in

1166

connection with the financing of costs related to constructing,

1167

furnishing, and equipping the cancer research, treatment, and

1168

related facilities facility. Such financing may include the

1169

issuance of tax-exempt bonds or other forms of indebtedness by a

1170

local authority, municipality, or county pursuant to parts II and

1171

III of chapter 159. Such bonds shall not constitute state bonds

1172

for purposes of s. 11, Art. VII of the State Constitution, but

1173

shall constitute bonds of a "local agency," as defined in s.

1174

159.27(4). The cigarette user fee tax dollars pledged to the

1175

facilities this facility pursuant to s. 210.20 may be replaced

1176

annually by the Legislature from tobacco litigation settlement

1177

proceeds.

1178

     Section 22.  Subsections (1), (2), (12), (13), (14), and

1179

(15) of section 215.5602, Florida Statutes, are amended to read:

1180

     215.5602  James and Esther King Biomedical Research

1181

Program.--

1182

     (1)  There is established within the Department of Health

1183

the James and Esther King Biomedical Research Program funded by

1184

the designated proceeds of s. 210.20(2)(c)5., as well as any

1185

prescribed portion of the Lawton Chiles Endowment Fund pursuant

1186

to s. 215.5601. The purpose of the James and Esther King

1187

Biomedical Research Program is to provide an annual and perpetual

1188

source of funding in order to support research initiatives that

1189

address the health care problems of Floridians in the areas of

1190

tobacco-related cancer, cardiovascular disease, stroke, and

1191

pulmonary disease. The long-term goals of the program are to:

1192

     (a)  Improve the health of Floridians by researching better

1193

prevention, diagnoses, treatments, and cures for cancer,

1194

cardiovascular disease, stroke, and pulmonary disease.

1195

     (b)  Expand the foundation of biomedical knowledge relating

1196

to the prevention, diagnosis, treatment, and cure of diseases

1197

related to tobacco use, including cancer, cardiovascular disease,

1198

stroke, and pulmonary disease.

1199

     (c)  Improve the quality of the state's academic health

1200

centers by bringing the advances of biomedical research into the

1201

training of physicians and other health care providers.

1202

     (d)  Increase the state's per capita funding for research by

1203

undertaking new initiatives in public health and biomedical

1204

research that will attract additional funding from outside the

1205

state.

1206

     (e)  Stimulate economic activity in the state in areas

1207

related to biomedical research, such as the research and

1208

production of pharmaceuticals, biotechnology, and medical

1209

devices.

1210

     (f) Expand the research capacity and infrastructure needed

1211

to conduct research on tobacco-related illnesses, with the

1212

provision of fixed capital outlay project funding as deemed

1213

appropriate by the Biomedical Research Advisory Council within

1214

the program's annual appropriation and with up to 25 percent of

1215

the program's annual funding allocation applied for this purpose

1216

by the council.

1217

     (2)  Funds appropriated for the James and Esther King

1218

Biomedical Research Program shall be used exclusively for the

1219

award of grants and fellowships as established in this section;

1220

for research relating to the prevention, diagnosis, treatment,

1221

and cure of diseases related to tobacco use, including cancer,

1222

cardiovascular disease, stroke, and pulmonary disease; for

1223

expenditures related to the expansion of tobacco-related research

1224

capacity and infrastructure within the state, including the

1225

provision of capital outlay costs to achieve such purpose; and

1226

for expenses incurred in the administration of this section.

1227

Priority shall be granted to research designed to prevent or cure

1228

disease.

1229

     (12)  Beginning in fiscal year 2006-2007, the sum of $6

1230

million is appropriated annually from recurring funds in the

1231

General Revenue Fund to the Biomedical Research Trust Fund within

1232

the Department of Health for purposes of the James and Esther

1233

King Biomedical Research Program pursuant to this section. From

1234

these funds up to $1 million $250,000 shall be available for the

1235

operating costs of the Florida Center for Universal Research to

1236

Eradicate Disease.

1237

     (13)  By June 1, 2009, the Division of Statutory Revision of

1238

the Office of Legislative Services shall certify to the President

1239

of the Senate and the Speaker of the House of Representatives the

1240

language and statutory citation of this section, which is

1241

scheduled to expire January 1, 2015 2011.

1242

     (14)  The Legislature shall review the performance, the

1243

outcomes, and the financial management of the James and Esther

1244

King Biomedical Research Program during the 2014 2010 Regular

1245

Session of the Legislature and shall determine the most

1246

appropriate funding source and means of funding the program based

1247

on its review.

1248

     (15) This section expires January 1, 2015 2011, unless

1249

reviewed and reenacted by the Legislature before that date.

1250

     Section 23.  Subsections (1) and (2) of section 381.922,

1251

Florida Statutes, are amended, present subsections (6), (7), and

1252

(8) of that section are amended and redesignated as subsections

1253

(7), (8), and (9), respectively, and a new subsection (6) is

1254

added to that section, to read:

1255

     381.922  William G. "Bill" Bankhead, Jr., and David Coley

1256

Cancer Research Program.--

1257

     (1)  The William G. "Bill" Bankhead, Jr., and David Coley

1258

Cancer Research Program, which may be otherwise cited as the

1259

"Bankhead-Coley Program," is created within the Department of

1260

Health. The purpose of the program shall be to advance progress

1261

towards cures for cancer through grants awarded through a peer-

1262

reviewed, competitive process, and to expand cancer research and

1263

treatment capacity in the state.

1264

     (2)  The program shall provide grants for cancer research to

1265

further the search for cures for cancer, for the recruitment of

1266

cancer researchers and research teams to institutions within the

1267

state, for operational start-up grants for newly recruited cancer

1268

researchers and research teams, and for fixed capital outlay

1269

expenditures related to the expansion of cancer research and

1270

treatment capacity in Florida, with up to 25 percent of the

1271

program's annual allocation applied to these purposes.

1272

     (a)  Emphasis shall be given to the goals enumerated in s.

1273

381.921, as those goals support the advancement of such cures.

1274

     (b)  Preference may be given to grant proposals that foster

1275

collaborations among institutions, researchers, and community

1276

practitioners, as such proposals support the advancement of cures

1277

through basic or applied research, including clinical trials

1278

involving cancer patients and related networks.

1279

     (6) Beginning in the 2008-2009 fiscal year, and every year

1280

thereafter, designated proceeds generated by s. 210.20(2)(c)5.

1281

shall be employed to enhance the purposes prescribed in this

1282

section.

1283

     (7)(6) By June 1, 2009, the Division of Statutory Revision

1284

of the Office of Legislative Services shall certify to the

1285

President of the Senate and the Speaker of the House of

1286

Representatives the language and statutory citation of this

1287

section, which is scheduled to expire January 1, 2015 2011.

1288

     (8)(7) The Legislature shall review the performance, the

1289

outcomes, and the financial management of the William G. "Bill"

1290

Bankhead, Jr., and David Coley Cancer Research Program during the

1291

2014 2010 Regular Session of the Legislature and shall determine

1292

the most appropriate funding source and means of funding the

1293

program based on its review.

1294

     (9)(8) This section expires January 1, 2015 2011, unless

1295

reviewed and reenacted by the Legislature before that date.

1296

     Section 24.  Subsections (1) and (2) of section 395.701,

1297

Florida Statutes, are amended to read:

1298

     395.701  Annual assessments on net operating revenues for

1299

inpatient and outpatient services to fund public medical

1300

assistance; administrative fines for failure to pay assessments

1301

when due; exemption.--

1302

     (1)  For the purposes of this section, the term:

1303

     (a)  "Agency" means the Agency for Health Care

1304

Administration.

1305

     (b)  "Gross operating revenue" or "gross revenue" means the

1306

sum of daily hospital service charges, ambulatory service

1307

charges, ancillary service charges, and other operating revenue.

1308

     (c)  "Hospital" means a health care institution as defined

1309

in s. 395.002(12), but does not include any hospital operated by

1310

the agency or the Department of Corrections.

1311

     (d)  "Net operating revenue" or "net revenue" means gross

1312

revenue less deductions from revenue.

1313

     (e) "Relative share" means the percentage of the net

1314

operating revenue generated by a hospital for a certain month

1315

which comprises the total net operating revenue generated by all

1316

such hospitals for such month, as determined by the agency.

1317

     (f)(e) "Total deductions from gross revenue" or "deductions

1318

from revenue" means reductions from gross revenue resulting from

1319

inability to collect payment of charges. Such reductions include

1320

bad debts; contractual adjustments; uncompensated care;

1321

administrative, courtesy, and policy discounts and adjustments;

1322

and other such revenue deductions, but also includes the offset

1323

of restricted donations and grants for indigent care.

1324

     (2)(a)  There is imposed upon each hospital an assessment in

1325

an amount equal to 1.5 percent of the annual net operating

1326

revenue for inpatient services for each hospital, such revenue to

1327

be determined by the agency, based on the actual experience of

1328

the hospital during its fiscal year as reported to the agency,

1329

less the sum of all relative shares of all monthly amounts

1330

credited or transferred during such fiscal year from the

1331

Cigarette Tax Collections Trust Fund to the Public Medical

1332

Assistance Trust Fund pursuant to s.210.20(2)(b)3. Within 6

1333

months after the end of each hospital fiscal year, the agency

1334

shall certify the amount of the assessment for each hospital. The

1335

assessment shall be payable to and collected by the agency in

1336

equal quarterly amounts, on or before the first day of each

1337

calendar quarter, beginning with the first full calendar quarter

1338

that occurs after the agency certifies the amount of the

1339

assessment for each hospital. All moneys collected pursuant to

1340

this subsection shall be deposited into the Public Medical

1341

Assistance Trust Fund.

1342

     (b)  There is imposed upon each hospital an assessment in an

1343

amount equal to 1 percent of the annual net operating revenue for

1344

outpatient services for each hospital during its fiscal year,

1345

such revenue to be determined by the agency, based on the actual

1346

experience of the hospital as reported to the agency, less the

1347

sum of all relative shares of all monthly amounts credited or

1348

transferred during such fiscal year from the Cigarette Tax

1349

Collections Trust Fund to the Public Medical Assistance Trust

1350

Fund pursuant to s. 210.20(2)(c)3. While prior year report

1351

worksheets may be reconciled to the hospital's audited financial

1352

statements, no additional audited financial components may be

1353

required for the purposes of determining the amount of the

1354

assessment imposed pursuant to this section other than those in

1355

effect on July 1, 2000. Within 6 months after the end of each

1356

hospital fiscal year, the agency shall certify the amount of the

1357

assessment for each hospital. The assessment shall be payable to

1358

and collected by the agency in equal quarterly amounts, on or

1359

before the first day of each calendar quarter, beginning with the

1360

first full calendar quarter that occurs after the agency

1361

certifies the amount of the assessment for each hospital. All

1362

moneys collected pursuant to this subsection shall be deposited

1363

into the Public Medical Assistance Trust Fund.

1364

     Section 25. Section 395.7015, Florida Statutes, is

1365

repealed.

1366

     Section 26. By December 1, 2009, and before December 1 of

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each year thereafter, the Department of Health shall submit to

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

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House of Representatives a report containing an estimate of the

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financial impact of tobacco use and related illnesses on the

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state's economy and its taxpayers for each of the prior 10 years,

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as well as an estimate of the value of cost savings associated

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with the expenditure of revenues generated by the cigarette user

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fee imposed by s. 210.02, Florida Statutes, during the same

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period.

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     Section 27.  This act shall take effect July 1, 2008.

CODING: Words stricken are deletions; words underlined are additions.