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HomeMy WebLinkAboutOrdinance 2001-42 Discretionary Communications Services Tax ORDINANCE NO. 2001-42 AN ORDINANCE OF THE CITY COMMISSION OF THE CITY OF WINTER SPRINGS, FLORIDA, RELATING TO THE IMPLEMENTATION OF A DISCRETIONARY COMMUNICATIONS SERVICES TAX IN ACCORDANCE WITH THE ENACTMENT OF THE COMMUNICATIONS SERVICES TAX SIMPLIFICATION LAW OF FLORIDA; PROVIDING FOR THE AMENDMENT OF CHAPTER 18 OF THE CITY CODE; PROVIDING FOR THE ADOPTION OF A NEW SECTION 18-31; PROVIDING FOR ELECTION NOT TO REQUIRE AND COLLECT PERMIT FEES; PROVIDING FOR ELECTION TO INCREASE LOCAL COMMUNICATIONS SERVICES TAX; PROVIDING FOR NOTICE TO THE DEPARTMENT OF REVENUE; PROVIDING FOR THE REPEAL OF INCONSISTENT ORDINANCES AND RESOLUTIONS; PROVIDING FOR SEVERABILITY; PROVIDING FOR CODIFICATION; PROVIDING AN EFFECTIVE DATE. WHEREAS, the Florida State Legislature through General Law 2000-260 (codified as Chapter 202 of the Florida Statutes) enacted the Communications Services Tax Simplification Law, which establishes the maximum rate of tax with which a municipality may charge for the retail sale of communication services and provides for a state wide, uniform, procedure for the imposition, collection, and remittance of this tax; and WHEREAS, section 337.401(3)(c)1., Florida Statutes (2000), requires each municipality to make an election regarding the payment of permit fees by providers of communications services and further requires each municipality to inform the Department of Revenue of the election by certified mail by July 16,2001; and WHEREAS, a municipality may require and collect permit fees from any providers of communications services that use or occupy municipal roads or rights-of-way for the provision of communications services. However, to ensure competitive neutrality among providers of communications services, a municipality that elects to exercise its authority to require and collect permit fees will have an automatic reduction in the rate of the local communications services tax for the municipality, as computed under section 202.20(1) and (2), Florida Statutes (2000), as 1 amended, by a rate of 0.12%; and WHEREAS, alternatively a municipality may elect not to require and collect permit fees from any provider of communications services that uses or occupies municipal roads or rights- of-way for the provision of communications services. If the municipality elects not to require and collect permit fees, the total rate for the local communications services tax as computed under section 202.20(1) and (2), Florida Statutes (2000), as amended, for that municipality may be increased by ordinance by an amount not to exceed a rate of 0.12%; and WHEREAS, section 34, 2001-140 General Laws of Florida further amends section 337.401(3)(c)1., Florida Statutes (2000), to state that the Department of Revenue must be informed of a municipality's election by certified mail postmarked on or before July 16, 2001; and WHEREAS, section 34, 2001-140 General Laws of Florida further provides that if a municipality elects not to require and collect permit fees from any provider of communications services that uses or occupies municipal roads or rights-of-way for the provision of communications services, the total rate for the local communications services tax as computed under section 202.20(1) and (2), Florida Statutes (2000), as amended, for that municipality may be increased by ordinance or resolution by an amount not to exceed a rate of 0.12%. The bill further provides if a municipality elects to increase its rate effective October 1, 2001, the municipality shall inform the Department of Revenue of such increased rate by certified mail postmarked on or before July 16, 2001; and WHEREAS, section 337.401(3)(c)1., Florida Statutes (2000), further provides that if a municipality does not make an election and notify the Department of Revenue, it is presumed that the municipality elects not to require and collect permit fees from any provider of communications services that uses or occupies municipal roads or rights-of-way for the provision of communications services, and such municipality will be authorized to increase its tax rate by an amount not to exceed a rate of 0.12%; and WHEREAS, the City Commission, in accordance with section 12, 2001-140, General 2 Laws of Florida, elects to adopt by this ordinance the rate of tax upon communications services; and WHEREAS, the enactment of Chapter 202 and amendment to Chapter 337, Florida Statutes has rendered portions of the city code to be in conflict with the state statutes; and WHEREAS, the City Commission desires to amend the city code to extinguish any conflicts; and WHEREAS, the City Commission of the City of Winter Springs deems it in the best interest of the public health, safety, and welfare of the citizens of the City of Winter Springs.NOW, THEREFORE, THE CITY COMMISSION OF THE CITY OF WINTER SPRINGS HEREBY ORDAINS, AS FOLLOWS: Section 1. Recitals. The Recitals set forth above are true and correct and form a part of this Ordinance. Section 2. Code Amendment. The City of Winter Springs Code Chapter 18< Article II. Municipal Public Service Tax is hereby amended as follows: (underlined type indicates additions and strikeout type indicates deletions, while asterisks (* * *) indicate a deletion from the Ordinance of text existing in Chapter 18, Article II. It is intended that the text in Chapter 18, Article II denoted by the asterisks and set forth in this Ordinance shall remain unchanged from the language existing prior to adoption of this Ordinance) CHAPTER 18 ARTICLE II. MUNICIPAL PUBLIC SERVICE TAX Sec. 18-26. Levy. *** (b) There is hereby imposed and levied by the city a tax upon each and every purchase of communications services. as defined in & 202.11. Florida Statutes (2000), as may be amended. and which is provided for by Chapter 202. Florida Statutes (2000). as may be amended. 3 (c) Pursuant to section 12. Chapter 2001-140. Laws of Florida. amending section 202.20. the City Commission of the City of Winter Springs. Florida. hereby elects to adopt a 6.20% rate as the City's local communications services tax for the period beginning October 1. 2001 and ending September 30. 2002. This rate does not include the add-on rate as provided for in Section 18-31. (d) Pursuant to section 12. Chapter 2001-140. Laws of Florida. amending section 202.20. the City Commission ofthe City of Winter Springs. Florida. hereby elects to adopt a 5.80% rate as the City's local communications services tax for the period beginning October 1. 2002. This rate does not include the add-on rate as provided for in Section 18-31. (e) As used in this chapter, terms shall have the meaning and definition given to them under section 203.012, Florida Statutes, unless otherwise provided. Sec. 18-27. Exemptions. Purchases by all federal, state, county and municipal governments and their commissions and agencies, all public schools and all recognized churches that possess a consumer certificate of exemption issued under Chapter 212, Florida Statutes, communications services for use in the conduct of a communications services for hire or otherwise for resale and certain other public bodies exempted by law or court order, shall be exempt from the taxes hereby imposed and levied under this article. However, governmental bodies which sell or resell taxable services to nonexempt end users must collect and remit the tax levied under section 18-26. Sec. 18-28. Collection by seller. * * * City of Winter Springs Ordinance No. 2001-42 (a) It shall be the duty of every seller of electricity, metered or bottled gas (natural, liquefied or manufactured), and water service within the city to collect from the purchaser, for the use of the city, the tax levied under section 18-26,(a) at the time of collecting the charge therefor, and to file a return and remit, on or before the twentieth day of each calendar month, or if the twentieth day is either a legal holiday or is not a city business day, then on or before the first city business day that is not also a legal holiday, following the twentieth day ofthe month, unto the city, all such taxes levied and collected during the preceding calendar month. The date of receipt of such taxes by the city will be the date of postmark, or if by electronic transfer, the date received by the city's primary bank as indicated on the city's bank statement. Notwithstanding any other provision ofthis section, in the event the total amount of tax anticipated to be collected within a calendar quarter does not exceed one hundred twenty dollars ($120.00), the seller of such service may, with the authorization ofthe city, remit the taxes collected during such calendar quarter to the city quarterly. In such case, the tax shall be due on or before the twentieth day of the month following the end of the calendar quarter in which the taxes were collected. The term "return" as used in this section, means the supporting documentation submitted periodically in accordance with the provisions of this chapter, and to be accompanied by the tax remittance, if any for that period, unto the city, which at a minimum shall indicate: *** (b) It shall be the duty of each seller of communications services. within the city to collect from the purchaser. for the use of the city. the tax levied under section 18-26(b). and to remit such tax in accordance with Chapter 202. Florida Statutes (2000). as may be amended. Sec. 18-29. Seller's records. (a) Each and every seller of electricity, metered or bottled gas (natural, liquefied or manufactured), and water service , shall keep at its principal place of business a complete record showing all sales in the city of such commodities or service, which records shall show the price charged upon each sale, the date thereof, the date of City of Winter Springs Ordinance No. 2001-42 payment, the amount of utility taxes charged upon each sale, the date such utility tax was remitted to the city, the period of time covered by such remittance and other related information that may be required to verify proper collection and remittance of said taxes. To assure proper administration of the provisions of this chapter, the city may, where possible and practical, conduct a periodic audit of each sales records of all businesses in connection with which the tax is imposed under this chapter. Failure to conduct such an audit will not eliminate the liability of the seller for collection and remittance of the tax. Pursuant to section 166.234, Florida Statutes, the city may, during the seller's normal business hours at the official location ofthe seller's books and records, audit the records of any seller of a service that is taxable by the city under section 166.231 or 166.232, Florida Statutes, for the purposes of ascertaining whether taxable services have been provided or the correctness of any return that has been filed or payment that has been made, ifthe city's power to assess tax or grant a refund is not barred by the applicable limitations period. Each such seller must provide to the city, upon sixty (60) days written notice of intent to audit from the city, access to applicable records for such service, except an extension of this sixty-day period must be granted if reasonably requested by the seller. The seller may at its option waive the sixty-day notice requirement. If either the city or the seller requires an additional extension, it must give notice to the other no less than thirty (30) days before the existing extension expires, except in cases of bona fide emergency or waiver of the notice requirement by the other party. In an audit, the seller is liable only for its taxable accounts collected which correspond to the information provided to it by the city under section 166.233(3), Florida Statutes. As used in this section "applicable records" means records kept in the ordinary course of business which establish the collection and remittance of taxes due. Such applicable records may be provided to the city on an electronic medium if agreed to by the seller and the city. In accordance with section 166.231 (9)( c), Florida Statutes, any information received by the city or its agent in connection with such audit is confidential and exempt from the provisions of section 119.07(1), Florida Statutes. (b) Each and every seller of communications services within the city shall maintain such records as is required bv Chapter 202. Florida Statutes (2000). as may be amended. and shall be subiect to all auditing procedures provided for within Chapter 202. Florida Statutes (2000). Sec. 18-30. Interest and penalties. (a) Any seller of electricity, metered or bottled gas (natural, liquefied or manufactured), or water service failing to remit to the city on or before the twentieth day of each calendar month or quarter, as applicable, or ifthe twentieth day is either a legal holiday or is not a city business day, then on or before the first city business day, that is not also a legal holiday, following the twentieth day of the month or quarter, as applicable, all such taxes levied and collected during the proceeding tax period shall be liable for interest on the unpaid amount of tax at the rate of one percent per month from the date the tax was due until paid. In addition, penalties will be assessed at a rate of five (5) percent per month of the delinquent tax, not to exceed a total penalty of twenty-five (25) percent, except that in no event will the penalty City of Winter Springs Ordinance No. 2001-42 for failure to file a return be less that fifteen dollars ($15.00). In the case of a fraudulent return or a willful intent to evade payment of the tax, the seller making such fraudulent return or willfully attempting to evade payment of the tax, shall be liable for a specific penalty of one hundred (100) percent of the tax. Interest and penalties shall be computed on the net tax due after application of any overpayments. The interest and penalties shall accrue from the due date until the date such taxes are paid; provided, however, that the city may settle or compromise any interest due pursuant to this section as is reasonable under the circumstances. *** Sec. 18-31. Rights-of-way Permit Fee Election (a) The City of Winter Springs will not require and collect permit fees from any provider of communications services that uses or occupies municipal roads or rights-of-way for the provision of communications services. As provided in section 337.401(3)(c)1.. Florida Statutes (2000). this election shall take effect October 1. 2001. (b) Pursuant to section 337.401(3)(c)1.b.. Florida Statutes (2000), as amended by section 34. 2001-140 General Laws of Florida. the City of Winter Springs elects to increase its total rate for the local communications services tax. as computed under section 12.2001-140. General Laws of Florida. amending section 202.20(1) and (2). Florida Statutes(2000). by an amount of 0.12%. and this election shall take effect October 1. 2001. Section 3. Repeal of Prior Inconsistent Ordinances and Resolutions. All prior inconsistent ordinances and resolutions adopted by the City Commission, or parts of prior ordinances and resolutions in conflict herewith, are hereby repealed to the extent of the conflict. Section 4. Incorporation Into Code. This ordinance shall be incorporated into the Winter Springs City Code and any section or paragraph number or letter and any heading may be changed or modified as necessary to effectuate the foregoing. Section 5. Severability. If any section, subsection, sentence, clause, phrase, word or provision of this ordinance is for any reason held invalid or unconstitutional by any court of competent jurisdiction, whether for substantive, procedural, or any other reason, such portion shall be deemed a separate, distinct and independent provision, and such holding shall not affect the validity of the remaining portions of this ordinance. Section 6. Effective Date. This Ordinance shall become effective immediately upon adoption by the City Commission of the City of Winter Springs, Florida. ADOPTED by the City Commission of the City of Winter Springs, Florida, in a regular meeting assembled on the 9th day of July ,2001. City of Winter Springs Ordinance No. 2001-42 Paul P. Partyka, Mayor ATTEST: Andrea Lorenzo-Luaces, City Clerk Approved as toa legal form and sufficiency for the city of Winter Springs only Anthony A. Garganese, City Attorney First Reading: June 25, 2001 Second Reading: July 9, 2001 Effective Date: July 9, 2001 F:\Lawyer\Jeftb\Communications Services Tax - Cities\Winter Springs\Chapter 18.wpd City of Winter Springs Ordinance No. 2001-42 ORINANCE NUMBER 2001-42 AN ORDINANCE 0F THE CITY COM- MISSION OF THE CITY OF WINTER SPRINGS. FLORIDA. RELATING TO THE IMPLEMENTATION OF A DIS- CRETIONARY COMMUNICATIONS SERVICES TAX IN ACCORDANCE WITH THE ENACTMENT OF THE COMMUNICATlONS SERVICES TAX SIMPUACATlON LAW OF FLORIDA; PROVIDING FOR THE AMENDMENT OF CHAPTER 18 OF THE CITY CODE; PROVIDING FOR THE ADOP- TION OF A NEW SECTION 18-31; PROVIDING FOR ELECTION NOT TO REOUIRE AND COLlECT PERMIT FEES; PROVIDING FOR ELECTION TO INCREASE LOCAL COMMUNI- CATIONS SERVICES TAX; PROVID- ING FOR NOTICE TO THE DEPART- MENT OF REVENUE; PROVIDING FDR THE REPEAL OF INCONSIS- TENT ORDINANCES AND RESOLU- TIONS; PROVIDING FOR SEVER. ABILITY; PROVIDING FOR CDDIFICATION; PROVIDING AN EF- FECTIVE DATE. A PUBLIC HEARING ON THE SECOND READING OF PROPOSED ORDI. NANCE 2001-42 WI LL TAKE PLACE AT THE CITY COMMISSION CHAM- BERS IN CITY HALL AT 1126 EAST STATE ROAD 434, WINTER SPRINGS, FLORIDA ON JUL Y 9, 2001 AT 6;30 P.M. INTEREST- ED PERSONS MAY AT- TEND AND BE HEARD. ADDITIONAL INFORMA- TION 'PERTAiNING TO THE ABOVE MAY BE OB- TAINED FROM THE OF- FICE OF THE CiTY CLERK AT CITY HALL. 1126 EAST STATE ROAD 434, WINTER SPRINGS, FLORIDA. FOR MORE IN- FORMATION CALL 327- 1800, EXT. # 227. PERSONS WITH DISABILI. TIES NEEDING ASSIS- TANCE TO PARTICIPATE IN ANY OF THESE PRO- CEEDINGS SHOULD CON- TACT THE EMPLOYEE RELATIONS DEPART- MENT COORDINATOR 48 HOURS IN ADVANCE OF THE MEETING AT (407) 327-1800. THIS IS A PUBLIC HEAR- ING. IF YOU DECIDE TO APPEAL ANY DECISION OR RECOMMENDATION MADE BY THE CITY COM- MISSION WITH RESPECT TO ANY MATTER CON- SIDERED AT THIS MEET- ING, YOU WILL NEED A RECORD OF THE PRO CEEDINGS, AND, FOR SUCH PURPOSES, YOU MAY NEED TO ENSURE THAT A VERBATIM RE- CORD OF THE PROCEED- INGS IS MADE UPON WHICH THE APPEAL' IS TO BE BASED. Andrea Lorenzo-Luaces City Clerk June 29, 2001 Orlando Sentinel Published Daily State of Florida S.S. COUNTY OF ORANGE Before the undersigned authority personally appeared Julia Nichols , who on oath says that he/she is the Legal Advertising Representative of Orlando Sentinel, a dally newspaper published at ALTAMONTE SPRINGS in Seminole County, Florida; that the attached copy of advertisement, being a ORDINANCE NUMBER in the matter of ORDINANCE 2001-42 in the SEMINOLE Court was published in said newspaper in the issue of 06/29/01 Affiant further says that the said Orlando Sentinel is a newspaper published at ALTAMONTE SPRINGS in said Seminole County, Florida, and that the said newspaper has heretofore been continuously published in said Seminole County, Florida, each Week Day and has been entered as second-class mail matter at the post office in ALTAMONTE SPRINGS in said SEMINOLE County, Florida, for a period of one year next preceding the first publication of the attached copy of advertisement; and affiant further says that he/she has neither paid nor promised any person, firm or corporation discount, rebate, commission or refund for the purpose of securing the advertisement for publication in the said newspaper. the foregoing instrument was acknowledged before me this 29th day of June, 2001, by Julia Nichols, who is personally known to me and who did take an oath. Beverly C. Simmons (SEAL)