Commerce and Tourism — 2021 Regular Session Committee Packet (01/25/2021)
Summary
Committee packet for the Monday, January 25, 2021 meeting of the Florida Senate Commerce and Tourism committee, 2021 Regular Session, with Senator Hooper as Chair. The expanded agenda lists SB 228 by Bradley (Notaries Public) and SB 50 by Gruters (Sales and Use Tax) with their committee actions. The packet includes a Bill Analysis and Fiscal Impact Statement for CS/SB 228, dated January 26, 2021, which says the bill provides updates to the process for online notarizations and takes effect on October 1, 2021. Its closing meeting record lists speakers on SB 50 and says SB 50 is reported favorably.
Summary drafted by a model from the document's text below and checked by script against that text before publication. It is a navigation aid, not a reading of what the document proves. Where AI is used
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Selection From: 01/25/2021 - Commerce and Tourism (2:30 PM - 5:00 PM) 2021 Regular Session
Committee Packet 01/26/2021 4:18 PM
Agenda Order
Tab 1 SB 228 by Bradley (CO-INTRODUCERS) Burgess; (Identical to H 00121) Notaries Public
267620 A S RCS CM, Bradley Delete L.320 - 341: 01/26 09:39 AM
SB 50 by Gruters (CO-INTRODUCERS) Perry, Hooper, Torres, Taddeo, Burgess; (Compare to H 00015)
Tab 2
Sales and Use Tax
Page 1 of 1
2021 Regular Session The Florida Senate
COMMITTEE MEETING EXPANDED AGENDA
COMMERCE AND TOURISM
Senator Hooper, Chair
Senator Wright, Vice Chair
MEETING DATE: Monday, January 25, 2021
TIME: 2:30—5:00 p.m.
PLACE: Toni Jennings Committee Room, 110 Senate Building
MEMBERS: Senator Hooper, Chair; Senator Wright, Vice Chair; Senators Burgess, Diaz, Garcia, Gruters,
Hutson, Pizzo, Powell, Taddeo, and Torres
BILL DESCRIPTION and
TAB BILL NO. and INTRODUCER SENATE COMMITTEE ACTIONS COMMITTEE ACTION
PUBLIC TESTIMONY WILL BE RECEIVED FROM ROOM A1 AT THE DONALD L.
TUCKER CIVIC CENTER, 505 W PENSACOLA STREET, TALLAHASSEE, FL 32301
Introduction of Committee Members and Staff Presented
Brief Overview of the Committee's Jurisdiction Presented
1 SB 228 Notaries Public; Authorizing an employer of a notary Fav/CS
Bradley public to require the use of a particular technology Yeas 11 Nays 0
(Identical H 121) and provider in performing a notarial act with respect
to an electronic record; modifying requirements for
entries in the electronic journal maintained by an
online notary public; clarifying that an online notary
public is entitled to select his or her remote online
notarization service provider; clarifying limitations on
fees charged for online notarizations, etc.
CM 01/25/2021 Fav/CS
JU
RC
2 SB 50 Sales and Use Tax; Expanding the definition of the Favorable
Gruters term “retail sale” to include sales facilitated through a Yeas 11 Nays 0
(Compare H 15) marketplace; defining the terms “remote sale” and
“substantial number of remote sales”; providing that
every person making a substantial number of remote
sales is a dealer for purposes of the sales and use
tax; providing that certain marketplace providers are
dealers for purposes of the sales and use tax;
providing that a marketplace seller, rather than the
marketplace provider, is liable for sales tax collection
and remittance under certain circumstances, etc.
CM 01/25/2021 Favorable
FT
AP
Other Related Meeting Documents
S-036 (10/2008)
01252021.1554 Page 1 of 1
Commerce and Tourism (CM)
Staff: Jessie Harmsen, Todd McKay, Carter McMillan,
Madeline Reeve, Kathryn Vigrass
Subject Matter Areas Entities
1) Advertisers Dept of Economic Opportunity (DEO)
2) Business organizations Dept of Agriculture and Consumer Services
3) Commercial activity (non agriculture, including Division of
4) Consumer protection, including: Consumer Services and Division of
a) sale of goods and services, including contracts Licensing)
and rebates Dept of State (Division of Corporations)
b) safety Enterprise Florida, Inc.
c) FDUTPA Florida Sports Foundation
5) Economic development, including: Office of Film & Entertainment
a) business recruitment Visit Florida
b) incentives CareerSource Florida
c) technology research Regional Workforce Boards
d) minority businesses Florida Development Finance Corporation
e) small businesses
f) capital
g) job creation
h) international trade
6) Event tickets and admissions
7) Film and entertainment industries
8) Non-agricultural consumer services
9) Notaries
10) Retail and retailers
11) Sales and use tax, including exemptions and internet
sales (with FT)
12) Sports
13) Technology
14) Tourism
15) Trade issues
16) Triumph Gulf Coast
17) Workforce issues, including:
a) reemployment assistance
b) reemployment services
c) employment agencies
d) minimum wage
e) labor and employment issues
The Florida Senate
BILL ANALYSIS AND FISCAL IMPACT STATEMENT
(This document is based on the provisions contained in the legislation as of the latest date listed below.)
Prepared By: The Professional Staff of the Committee on Commerce and Tourism
BILL: CS/SB 228
INTRODUCER: Commerce and Tourism Committee and Senator Bradley
SUBJECT: Notaries Public
DATE: January 26, 2021 REVISED:
ANALYST STAFF DIRECTOR REFERENCE ACTION
1. Harmsen McKay CM Fav/CS
2. JU
3. RC
Please see Section IX. for Additional Information:
COMMITTEE SUBSTITUTE - Substantial Changes
I. Summary:
CS/SB 228 provides updates to the recently created process for online notarizations in ch. 117,
F.S. In part, the bill:
Institutes a self-certification requirement for remote online notarization service providers to
ensure their eligibility to assist with the provision of notary services;
Transfers specific duties from online notaries public to their remote online notarization
service providers;
Requires the Department of State to publish information about active and inactive online
notaries public and remote online notarization service providers;
Permits online notaries to rely on a foreign passport of an individual who is currently outside
of the borders of the United States to perform an online notarization;
Implements privacy requirements for personally identifying information given during an
online notarization; and
Provides several clarifications and technical updates to the process of online notarizations
provided for in ch. 117, F.S.
The bill takes effect on October 1, 2021.
II. Present Situation:
In 2019, the Legislature substantially amended ch. 117, F.S., to authorize notaries public, civil-
law notaries, and commissioners of deeds to register as online notaries to provide online notary
BILL: CS/SB 228 Page 2
services through two-way, remote audio-visual communication technology, similar to skype and
zoom.1
Florida is one of 29 states that permits remote online notarization (RON).2 Virginia was the first
to enact a RON law in 2012,3 and the proposed SECURE Act in Congress would permit all
current notaries public appointed in the U.S. to perform RON in connection with interstate
transactions.4 Additionally, RON has been expanded through federal agency guidance, state
emergency powers, and specific court’s administrative orders to allow necessary business to
continue during the COVID-19 pandemic.5 The Florida Supreme Court issued an administrative
order that permits notaries and all other parties qualified to administer oaths in Florida to swear a
witness remotely by audio-video communication technology from a location within the State of
Florida.6
Online Notaries Public in Florida
The Department of State (department) governs the registration of online notaries public (online
notaries), and as a prerequisite, requires registrants to:7
Be commissioned or appointed as a notary public pursuant to ch. 117, F.S., a civil-law notary
under ch. 118, or a commissioner of deeds under part IV of ch. 721;
Complete training that covers the duties, obligations, and technology requirements for
serving as an online notary;
Pay a $10 notary public registration fee;
Have a current contract with a RON service provider whose technologies and credentialing
processes satisfy the statutory minimum requirements; and
Maintain a $25,000 bond and a current errors and omissions insurance policy.
As of January 2021, 6,278 online notaries had registered with the department.8
1
Chapter 2019-71, L.O.F. CS/CS/HB 409 (2019) was signed into law on June 7, 2019, and took effect on January 1, 2020.
2
M.H.K. Tank, D. Whitaker, E.S.M. Caires, A. Grant, Coronavirus: Federal and State Governments Work Quickly to Enable
Remote Online Notarization to Meet Global Crisis, DLAPiper Publications (Jan. 4, 2021),
https://www.dlapiper.com/en/us/insights/publications/2020/03/coronavirus-federal-and-state-governments-work-quickly-to-
enable-remote-online-
notarization/#:~:text=Currently%2C%20there%20are%2028%20states,Dakota*%2C%20Tennessee%2C%20Texas%2C (last
visited Jan. 25, 2021).
3
Lauren Silverman, Notaries are Starting to Put Down the Stamp and Pick Up a Webcam, National Public Radio, All Tech
Considered (June 12, 2017), https://www.npr.org/sections/alltechconsidered/2017/06/12/532586426/notaries-are-starting-to-
put-down-the-stamp-and-pick-up-a-webcam (last visited Jan. 25, 2021). See Office of the Secretary of the Commonwealth of
Virginia, Notary Public Division, A Handbook for Virginia Notary Publics,
https://www.governor.virginia.gov/media/governorvirginiagov/secretary-of-administration/Virginia-Remote-Online-
Notarization-Guidance.pdf (last visited Jan. 25, 2021).
4
Tank, et al. supra note 2. Securing and Enabling Commerce Using Remote and Electronic Notarization Act of 2020, S.B.
3533, 116th Cong. (2020), available at https://www.congress.gov/bill/116th-congress/senate-
bill/3533/text?q=%7B%22search%22%3A%5B%223533%22%5D%7D&r=4&s=2 (last visited Jan. 25, 2021).
5
Tank, et al. supra note 2.
6
Florida Supreme Court, In Re: COVID-19 Emergency Procedures for the Administering of Oaths via Remote Audio-Video
Communication Equipment, Fla. Admin. Order No. AOSC20-16, (Mar. 18, 2020) available at
https://www.floridasupremecourt.org/content/download/632105/file/AOSC20-16.pdf (last visited Jan. 25, 2021).
7
Section 117.225, F.S.; Fla. Admin. Code, R. 1N-7.001 (2020). See also, Department of State, Remote Online Notary Public,
https://dos.myflorida.com/sunbiz/other-services/notaries/remote-online-notary-public/ (last visited Jan. 25, 2021).
8
Email from Department of State staff (Jan. 13, 2021) (on file with the Senate Committee on Commerce and Tourism).
BILL: CS/SB 228 Page 3
An online notary can administer oaths or affirmations, take acknowledgements, attest to
photocopies, verify vehicle identification numbers, and certify the contents of a safe-deposit box.
The online notary must perform the notarial service from Florida, but the individual who seeks
the notarial service (principal) and any witnesses can login to the RON platform from anywhere
in the world. An online notary may charge a fee of no more than $25 for performing a notarial
service.9
Online notaries differ from notaries public in that they may use audio-visual technology to
notarize a document for a principal who is in a different physical location; a notary public must
be physically present with the principal to notarize a document. Additionally, although notaries
public can solemnize marriages, an online notary cannot.10
Remote Online Notarization (RON) Service Providers
A RON service provider is a person that provides audio-video communication technology and
related processes, services, software, data storage, or other services to online notaries to facilitate
their performance of online notarizations.11 More concretely, a RON service provider hosts a
platform that provides the audiovisual technology that allows the notary and signer to see, hear
and communicate with each other over the internet.12
Online Notarization
To perform an online notarization service, an online notary must first determine whether the
principal is located outside of Florida at the time of notarization. If so, the online notary must
confirm that the principal understands that the notarization will occur according to Florida law.
Next, the online notary must confirm the principal’s identity.13 An online notary may do so by
documenting that he or she personally knows the principal, or, if the notary does not know the
principal, by documenting all of the following:
The principal’s remote presentation of a government-issued identification;14
The notary’s credential analysis15 of the identification to ensure its validity; and
9
Section 117.275, F.S.
10
Section 117.209(1), F.S.
11
Section 117.201(14), F.S.
12
David Thun, The National Notary Magazine, The State of Remote Online Notarization (Nov. 19, 2019), available at
https://www.nationalnotary.org/notary-bulletin/blog/2019/11/the-state-of-remote-online-notarization (last visited Jan. 25,
2021).
13
Section 117.265(4), F.S.
14
Section 117.05(5)(b)2 lists acceptable identification as: Florida identification card or driver license; a U.S. passport; a
passport issued by a foreign government if it is stamped by the U.S. Bureau of Citizenship and Immigration Services; a driver
license of id card issued by a state other than Florida, or a territory in the U.S., Canada, or Mexico; an id card issued by the
U.S. armed forces; a veteran health id card; an inmate id card issued by if the principal is still in the Florida Department of
Correction’s or U.S. Department of Justice’s custody; an id card issued by the U.S. Bureau of Citizenship and Immigration
Services; or, where all of the inmate’s identifications were confiscated upon his or her confinement—a sworn, written
statement from a law enforcement officer that states that the inmate is the person whose signature is to be notarized.
15
Section 117.201(3), F.S. See also, s. 117.295(3)(b), F.S.
BILL: CS/SB 228 Page 4
The notary’s identity proofing16 of the principal, wherein a third-party provides knowledge-
based authentication questions that must be correctly answered by the principal in a limited
amount of time.
If the notary cannot document these steps, then he or she is not permitted to perform the online
notarization.
Should the online notarization also require a witness, the online notary must confirm the witness’
identity.17 If the witness is physically present with the principal, he or she can confirm his or her
identity by stating his or her name and current address on the recording. If the witness is
connected via audio-visual communication technology (outside of the principal’s presence), the
online notary must confirm the witness’ identity by presentation of government-issued
identification and performance of a credential analysis and identity proofing, as required for the
principal.
Should the notary succeed in confirming the pertinent identities, then the notary may witness the
principal electronically sign the document. Then the notary adds his or her unique electronic
signature and digital notary seal using tamper-evident technology that would document any
subsequent change to the document.18
For all online notarizations, an online notary must:
Make and maintain a recording of the audio-visual component (video) of the notarization,
including the credential analysis and identity proofing he or she performed, if any;19 and
Create an entry in his or her electronic journal of notarizations that notes specific information
about the notarization, including types of identification used and the names and addresses of
all parties involved.20
The online notary must maintain both the electronic journal and the recordings for at least 10
years after the notarization. An online notary, his or her estate, or guardian may transfer these
documents to a secure repository should he or she become incapable of maintaining them before
the 10 years have elapsed.21
III. Effect of Proposed Changes:
Section 117.021, F.S., currently grants a notary public the right to perform notarial acts, with
respect to an electronic record, with whatever form of technology he or she chooses. Section 1
amends s. 117.021, F.S., to accommodate an employer’s requirement that a notary public who
performs notarial acts as a part of his or her job use technology and providers chosen by the
employer within the scope of employment. This allows a business to standardize its services and
contracts. The notary public’s right to use his or her preferred technology outside of the scope of
employment is not changed by this amendment.
16
Section 117.201(7), F.S. See also, s. 117.295(3)(a), F.S.
17
Section 117.285, F.S.
18
Section 117.255, F.S. See also, Silverman supra note 3.
19
Section 117.245(2), F.S.
20
Section 117.245(1), F.S.
21
Section 117.245(4), F.S.
BILL: CS/SB 228 Page 5
Section 2 amends s. 117.05, F.S., to clarify that a notary public may not charge a fee in excess of
$10 per each signature per document, rather than for each “notarial act.”
Section 3 amends s. 117.201, F.S., to permit an online notary to use a passport issued by a
foreign government that does not include an immigration stamp from the U.S. Bureau of
Citizenship and Immigration services to validate a principal’s identity. This accommodates
online notarizations where the principal has not entered the United States, and appears via audio-
visual technology for the notarization.
Section 4 amends s. 117.215, F.S., to make non-substantive changes to clarify that a notary must
verify the identification of a witness who is not in the principal’s physical presence at the time of
the notarization in the same manner an online notary verifies the principal’s identity. It is unclear
how this amendment will affect witnesses who are in the principal’s physical presence at the
time of notarization, as s. 117.285(2), F.S., allows a physically-present witness’ identity to be
confirmed by the witness’ statement of his or her name and current address on the audio-video
recording.
Section 5 amends s. 117.225(1), F.S., to change the requirement that online notary registrants
submit a copy of their commission or appointment as a notary public, civil-law notary, or
commissioner of deeds, to accommodate instances in which the original copy of the appointment
or commission is lost. The amendment now requires proof of a commission or appointment as a
notary public, civil-law notary, or commissioner of deeds.
This section also amends s. 117.225(5), F.S., to permit online notary registrants to identify one or
more RON service providers with whom they have contracted to provide online notarizations.
Sections 6 and 7 amend ss. 117.245 and 117.255, F.S., to transfer the duty to maintain a
recording of the audio-video communication in which an online notarization was performed from
the online notary to the RON service provider used for the services. The RON service provider
must keep a copy of the recording at least 10 years, but it does not have a duty to transfer its
maintained recordings to a repository should it be unable to meet the repository requirement.
The bill also extends the duty to provide access to the RON service provider’s stored recordings,
or a copy thereof, to specific parties upon their request. The bill permits the RON service
provider to charge a fee of no more than $20 for producing a copy of the recording, and requires
disclosure of the fee in a timely manner.
Section 6 is also reorganized to clarify an online notary’s duty to note in his or her electronic
journal that a principal’s government-issued identification satisfied the credential analysis only
when the online notary relied on a principal’s identification to prove his or her identity, not in
cases where the online notary personally knew the principal.
Section 8 amends s. 117.265, F.S., to offer an accommodation to employers of online notaries to
allow them to specify the RON service provider the online notary may use in his or her capacity
as an employee, similar to the change made for notary public employers in section 1 of the bill.
BILL: CS/SB 228 Page 6
This amendment also reiterates that an online notary public may choose to use any RON service
provider outside or his or her employment relationship.
Section 9 amends s. 117.275, F.S., to specify that an online notary may not charge a fee in
excess of $25 per signature per document, rather than for each online notarization. It further
clarifies that this fee ceiling does not govern fees charged by a RON service provider, and states
that online notarization services are not considered closing services, as defined in s. 627.7711,
F.S.
Section 10 amends s. 117.295, F.S., to create a process whereby RON service providers must
certify with the department that they are eligible, pursuant to statute and rule, to provide audio-
visual communication and related processes for assistance in the provision of online notarization
services.
While these eligibility requirements exist in current statute, the duty to confirm the RON service
provider’s eligibility rests with the online notary at the time of his or her registration. Section 5
deletes the online notary’s duty to confirm a RON service provider’s eligibility in s. 117.225(5),
F.S., thereby completing the transfer of RON service provider eligibility certification from online
notary to RON service provider.
Section 10 further amends s. 117.295, F.S., to require that the department publish on its website
both a list of each online notary public, his or her past and present RON service providers, and
the effective dates during which the online notary used the RON service provider; and a list of all
RON service providers who have an active self-certification with the department.
The bill deletes the department’s emergency rulemaking, but leaves the department’s rulemaking
authority intact to permit further rulemaking to implement remote online notarizations in Florida.
Lastly, section 10 implements privacy standards that prohibit a RON service provider from
using, selling, or offering to sell or transfer for use or sale any personally identifying information
that it obtained under part II of ch. 117, F.S., from a principal, witness, or person named in a
record that was presented for notarization, except in cases where provision of the information is
necessary to:
Facilitate the notarial act;
Effect, administer, enforce, service, or process a record provided by or on behalf of a
principal or the transaction for which the record was provided;
Comply with federal, state, or local law, or to comply with a lawful subpoena or court order;
or
Engage in the sale, merger, transfer, or exchange of all or a portion of the RON service
provider’s business—if the transferee agrees to comply with the statutory privacy restrictions
in s. 117.295(8), F.S.
Section 11 provides that the bill takes effect on October 1, 2021.
BILL: CS/SB 228 Page 7
IV. Constitutional Issues:
A. Municipality/County Mandates Restrictions:
Not applicable. The bill does not require counties and municipalities to spend funds,
reduce counties’ or municipalities’ ability to raise revenue, or reduce the percentage of
state tax shared with counties and municipalities.
B. Public Records/Open Meetings Issues:
None.
C. Trust Funds Restrictions:
None.
D. State Tax or Fee Increases:
None.
E. Other Constitutional Issues:
None identified.
V. Fiscal Impact Statement:
A. Tax/Fee Issues:
None.
B. Private Sector Impact:
Notaries public and online notaries may change their fee structure pursuant to the
amendments to ss. 117.05 and 117.275, F.S., which apply the fee ceilings to each
signature per document, rather than “any one notarial act” or “for performing an online
notarization.” This could result in higher costs to individuals who seek the services of a
notary public or online notary.
RON service providers may have to update terms and processes to implement the privacy
restrictions in this bill.
C. Government Sector Impact:
The department will be required to implement processes to publish and maintain lists of
RON service providers and online notaries. It currently maintains a list of notaries public,
their commission number, and their commission’s expiration date—but does not
BILL: CS/SB 228 Page 8
currently indicate whether a notary public is registered as an online notary public.22 The
department states that this duty to publish additional information regarding online
notaries public and RON service providers will “have a significant impact on its current
technology systems. … [and] will require additional funding and may require additional
deliverables and/or timeframe be added to the COTS [commercial-off-the-shelf business
registry system] contract in progress.” The department therefore “request[s] additional
funding and FTE positions in order to perform the additional processing duties,
responsibilities and services specified in the bill.”23
The department also “suggests a fee for the RON service provider to file the self-
certification.”24 It is unclear if the department suggests this fee to defray costs related to
the publication of information required under the bill.
Additionally, the department may have to adopt forms or rules to implement the
certification of RON service providers.
VI. Technical Deficiencies:
None.
VII. Related Issues:
It is unclear what will occur to the recordings made and retained by RON service providers
should the RON service provider become unable to retain the recording for 10 years. Previously,
online notaries were required to transfer their recordings to a secure repository should they
become incapable of meeting the retention requirement, but the bill has no such requirement for
RON service providers.
Section 117.215, F.S., addresses witnesses, both those who appear on a RON platform in the
physical presence of the principal and those who link up remotely from the principal. Section 4
of the bill amends s. 117.215, F.S., to address only witnesses who are not in the principal’s
physical presence. It is unclear how this will affect identification procedures for witnesses who
are in the physical presence of the principal.
The department states it does not currently index or store online notaries’ RON service
providers, and therefore it will not be able to provide that information on the required published
lists. The department recommends that the bill be amended to require only that it publish the
online notary’s RON service providers’ information and service dates after the effective date of
the bill.25
22
Department of State, Approved Notaries, https://dos.myflorida.com/sunbiz/other-services/notaries/remote-online-notary-
public/approved-notaries/ (last visited Jan. 25, 2021).
23
Department of State, SB 228 Agency Analysis, p. 5 (Jan. 7, 2021) (on file with the Senate Committee on Commerce and
Tourism).
24
Id.
25
Id.
BILL: CS/SB 228 Page 9
VIII. Statutes Affected:
This bill substantially amends the following sections of the Florida Statutes: 117.021, 117.05,
117.201, 117.215, 117.225, 117.245, 117.255, 117.265, 117.275, 117.295.
IX. Additional Information:
A. Committee Substitute – Statement of Substantial Changes:
(Summarizing differences between the Committee Substitute and the prior version of the bill.)
CS by Commerce and Tourism on January 25, 2021:
Deletes “interim and emergency” rulemaking to implement provisions of the bill,
but leaves the department’s general rulemaking authority intact;
Requires RON service providers to self-certify each year instead of every two
years; and
Deletes the requirement that a RON service provider submit a new self-
certification after each amendment to ch. 117, F.S., and any rules adopted
pursuant thereto.
B. Amendments:
None.
This Senate Bill Analysis does not reflect the intent or official position of the bill’s introducer or the Florida Senate.
Florida Senate - 2021 COMMITTEE AMENDMENT
Bill No. SB 228
Ì267620ÅÎ267620
LEGISLATIVE ACTION
Senate . House
Comm: RCS .
01/26/2021 .
.
.
.
The Committee on Commerce and Tourism (Bradley) recommended the
following:
1 Senate Amendment
2
3 Delete lines 320 - 341
4 and insert:
5 (2) By January 1, 2020, The Department of State shall:
6 (a) Adopt forms, processes, and interim or emergency rules
7 necessary to accept applications from and register online
8 notaries public pursuant to s. 117.225.
9 (b) Publish on its website a list containing each online
10 notary public, the online notary public’s past and present RON
Page 1 of 2
1/22/2021 11:15:37 AM 577-01033-21
Florida Senate - 2021 COMMITTEE AMENDMENT
Bill No. SB 228
Ì267620ÅÎ267620
11 service providers, and the effective dates during which the
12 online notary public used each RON service provider, as
13 identified pursuant to ss. 117.225(5) and 117.265(5)(b).
14 (4)(a) A RON service provider must file a self-
15 certification with the Department of State on a form adopted by
16 department rule confirming that its audio-video communication
17 technology and related processes, services, software, data
18 storage, or other services provided to online notaries public
19 for the purpose of directly facilitating their performance of
20 online notarizations satisfy the requirements of this chapter
21 and any rules adopted by the Department of State pursuant to
22 this section. Each certification shall remain active for a
23 period of 1 year from the date of filing. The Department of
Page 2 of 2
1/22/2021 11:15:37 AM 577-01033-21
Florida Senate - 2021 SB 228 Florida Senate - 2021 SB 228
By Senator Bradley
5-00405B-21 2021228__ 5-00405B-21 2021228__
1 A bill to be entitled 30 particular remote online notarization service provider
2 An act relating to notaries public; amending s. 31 in performing online notarizations; requiring an
3 117.021, F.S.; authorizing an employer of a notary 32 online notary public to notify the Department of State
4 public to require the use of a particular technology 33 of the effective date of a change in the remote online
5 and provider in performing a notarial act with respect 34 notarization service provider used; amending s.
6 to an electronic record; amending s. 117.05, F.S.; 35 117.275, F.S.; clarifying limitations on fees charged
7 revising limitations on notary public fees; amending 36 for online notarizations; amending s. 117.295, F.S.;
8 s. 117.201, F.S.; revising definitions; amending s. 37 requiring the department to publish on its website a
9 117.215, F.S.; clarifying application of online 38 list containing certain information on online notaries
10 electronic witnessing standards when a witness is not 39 public; requiring a remote online notarization service
11 in the physical presence of the principal; amending s. 40 provider to file a self-certification with the
12 117.225, F.S.; revising certain registration 41 department; specifying the duration of a self-
13 requirements for online notaries public; amending s. 42 certification; requiring the department to publish on
14 117.245, F.S.; modifying requirements for entries in 43 its website a list of self-certified remote online
15 the electronic journal maintained by an online notary 44 notarization service providers; prohibiting a remote
16 public; requiring a remote online notarization service 45 online notarization service provider from using,
17 provider, rather than an online notary public, to 46 selling, or offering to sell or transfer personal
18 maintain audio-video communication recordings of 47 information obtained in the course of performing
19 online notarizations; conforming provisions to changes 48 online notarizations; providing exceptions; providing
20 made by the act; amending s. 117.255, F.S.; revising 49 an effective date.
21 provisions governing access to audio-video 50
22 communication recordings to conform to changes made by 51 Be It Enacted by the Legislature of the State of Florida:
23 the act; authorizing a remote online notarization 52
24 service provider to charge a fee for access to such 53 Section 1. Subsection (4) of section 117.021, Florida
25 recordings, subject to specified limitations; amending 54 Statutes, is amended to read:
26 s. 117.265, F.S.; clarifying that an online notary 55 117.021 Electronic notarization.—
27 public is entitled to select his or her remote online 56 (4) A notary public performing a notarial act with respect
28 notarization service provider; authorizing an employer 57 to an electronic record shall select the technology and provider
29 of an online notary public to require the use of a 58 to be used for such notarial act. A person may not require the a
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59 notary public to use a particular perform a notarial act with 88 communication technology and related processes, services,
60 respect to an electronic record with a form of technology or 89 software, data storage, or other services to online notaries
61 provider; however, if the notary public is required by his or 90 public for the purpose of directly facilitating their
62 her employer to perform notarial acts with respect to electronic 91 performance of online notarizations, in compliance with the
63 records, the employer may require the use of a particular 92 requirements of this chapter and any rules adopted by the
64 technology and provider for those notarial acts that the notary 93 Department of State pursuant to s. 117.295.
65 public has not selected to use. 94 Section 4. Subsection (2) of section 117.215, Florida
66 Section 2. Paragraph (a) of subsection (2) of section 95 Statutes, is amended to read:
67 117.05, Florida Statutes, is amended to read: 96 117.215 Relation to other laws.—
68 117.05 Use of notary commission; unlawful use; notary fee; 97 (2) If a provision of law requires a signature or an act of
69 seal; duties; employer liability; name change; advertising; 98 a principal to be witnessed and the witness is not in the
70 photocopies; penalties.— 99 physical presence of the principal at the time of the signature
71 (2)(a) The fee of a notary public may not exceed $10 per 100 or act, compliance with the online electronic witnessing
72 signature per document for any one notarial act, except as 101 standards prescribed in s. 117.285 and any rules adopted
73 provided in s. 117.045 or s. 117.275, for performing a 102 thereunder must be complied with in order to satisfy satisfies
74 notarization under this part. 103 that requirement.
75 Section 3. Subsections (6) and (14) of section 117.201, 104 Section 5. Subsections (1) and (5) of section 117.225,
76 Florida Statutes, are amended to read: 105 Florida Statutes, are amended to read:
77 117.201 Definitions.—As used in this part, the term: 106 117.225 Registration; qualifications.—A notary public, a
78 (6) “Government-issued identification credential” means any 107 civil-law notary appointed under chapter 118, or a commissioner
79 approved credential for verifying identity under s. 108 of deeds appointed under part IV of chapter 721 may complete
80 117.05(5)(b)2. However, for an online notarization of a 109 registration as an online notary public with the Department of
81 principal not located within the United States, a passport 110 State by:
82 issued by a foreign government not including the stamp of the 111 (1) Holding a current commission as a notary public under
83 United States Bureau of Citizenship and Immigration Services may 112 part I of this chapter, an appointment as a civil-law notary
84 be used as a government-issued identification credential to 113 under chapter 118, or an appointment as a commissioner of deeds
85 verify the principal’s identity. 114 under part IV of chapter 721, and submitting a copy of such
86 (14) “Remote Online Notarization service provider” or “RON 115 commission or proof of such commission or appointment with his
87 service provider” means a person that provides audio-video 116 or her registration.
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117 (5) Identifying the RON service provider or providers whose 146 c.(f) An indication that the principal satisfactorily
118 audio-video communication technology and processes for 147 passed the identity proofing.
119 credential analysis and identity-proofing technologies the 148 (g) An indication that the government-issued identification
120 registrant intends to use for online notarizations, and 149 credential satisfied the credential analysis.
121 confirming that such technology and processes satisfy the 150 (f)(h) The fee, if any, charged for the notarization.
122 requirements of this chapter and any rules adopted by the 151 (2) The RON service provider online notary public shall
123 Department of State pursuant to s. 117.295. 152 retain an uninterrupted and unedited copy of the recording of
124 Section 6. Subsections (1), (2), (4), and (5) of section 153 the audio-video communication in which an online notarization is
125 117.245, Florida Statutes, are amended to read: 154 performed. The recording must include all of the following:
126 117.245 Electronic journal of online notarizations.— 155 (a) Appearance by the principal and any witness before the
127 (1) An online notary public shall keep one or more secure 156 online notary public.
128 electronic journals of online notarizations performed by the 157 (b) Confirmation of the identity of the principal and any
129 online notary public. For each online notarization, the 158 witness.
130 electronic journal entry must contain all of the following: 159 (c) A general description or identification of the records
131 (a) The date and time of the notarization. 160 to be signed.
132 (b) The type of notarial act performed, whether an oath or 161 (d) At the commencement of the recording, recitation by the
133 an acknowledgment. 162 online notary public of information sufficient to identify the
134 (c) The type, the title, or a description of the electronic 163 notarial act.
135 record or proceeding. 164 (e) A declaration by the principal that his or her
136 (d) The name and address of each principal involved in the 165 signature on the record is knowingly and voluntarily made.
137 transaction or proceeding. 166 (f) All of the actions and spoken words of the principal,
138 (e) Evidence of identity of each principal involved in the 167 notary public, and any required witness during the entire online
139 transaction or proceeding in either any of the following forms: 168 notarization, including the signing of any records before the
140 1. A statement that the person is personally known to the 169 online notary public.
141 online notary public; or. 170 (4) The electronic journal required under subsection (1)
142 2.a. A notation of the type of government-issued 171 and the recordings of audio-video communications required under
143 identification credential provided to the online notary public; 172 subsection (2) shall be maintained for at least 10 years after
144 b. An indication that the government-issued identification 173 the date of the notarial act. However, a full copy of the
145 credential satisfied the credential analysis; and. 174 recording of the audio-video communication required under
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175 subsection (2) relating to an online notarization session that 204 to the online notarization of the execution of an electronic
176 involves the signing of an electronic will must be maintained by 205 will cannot be produced by the RON service provider, the online
177 a qualified custodian in accordance with chapters 731 and 732. 206 notary public, or the qualified custodian, the electronic will
178 The Department of State maintains jurisdiction over the 207 shall be treated as a lost or destroyed will subject to s.
179 electronic journal and audio-video communication recordings to 208 733.207.
180 investigate notarial misconduct for a period of 10 years after 209 Section 7. Section 117.255, Florida Statutes, is amended to
181 the date of the notarial act. The online notary public, a 210 read:
182 guardian of an incapacitated online notary public, or the 211 117.255 Use of electronic journal, signature, and seal.—
183 personal representative of a deceased online notary public may, 212 (1) An online notary public shall:
184 by contract with a secure repository in accordance with any 213 (a)(1) Take reasonable steps to ensure that any registered
185 rules established under this chapter, delegate to the repository 214 device used to create an electronic seal is current and has not
186 the online notary public’s duty to retain the electronic journal 215 been revoked or terminated by the issuing or registering
187 and the required recordings of audio-video communications, 216 authority of the device.
188 provided that the Department of State is notified of such 217 (b)(2) Keep the electronic journal and electronic seal
189 delegation of retention duties to the repository within 30 days 218 secure and under his or her sole control, which includes access
190 thereafter, including the address and contact information for 219 protection using passwords or codes under control of the online
191 the repository. If an online notary public delegates to a secure 220 notary public. The online notary public may not allow another
192 repository under this section, the online notary public shall 221 person to use the online notary public’s electronic journal,
193 make an entry in his or her electronic journal identifying such 222 electronic signature, or electronic seal, other than a RON
194 repository, and provide notice to the Department of State as 223 service provider or other authorized person providing services
195 required in this subsection. 224 to an online notary public to facilitate performance of online
196 (5) An omitted or incomplete entry in the electronic 225 notarizations.
197 journal does not impair the validity of the notarial act or of 226 (c)(3) Attach or logically associate the electronic
198 the electronic record which was notarized, but may be introduced 227 signature and seal to the electronic notarial certificate of an
199 as evidence to establish violations of this chapter; as evidence 228 electronic record in a manner that is capable of independent
200 of possible fraud, forgery, impersonation, duress, incapacity, 229 verification using tamper-evident technology that renders any
201 undue influence, minority, illegality, or unconscionability; or 230 subsequent change or modification to the electronic record
202 for other evidentiary purposes. However, if the recording of the 231 evident.
203 audio-video communication required under subsection (2) relating 232 (d)(4) Notify an appropriate law enforcement agency and the
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233 Department of State of any unauthorized use of or compromise to 262 (h) With respect to electronic copies of pertinent entries
234 the security of the electronic journal, official electronic 263 in the electronic journal, the RON service provider used for the
235 signature, or electronic seal within 7 days after discovery of 264 online notarizations associated with those entries.
236 such unauthorized use or compromise to security. 265 (3)(6) The online notary public may charge a fee not to
237 (2)(5) An online notary public shall provide make 266 exceed $20 per transaction record for making and delivering
238 electronic copies, upon request, of the pertinent entries in the 267 electronic copies of a given series of related electronic
239 electronic journal, and a RON service provider shall provide 268 records, and a RON service provider may charge a fee not to
240 access to the related audio-video communication recordings, or a 269 exceed $20 for providing access to, or a copy of, the related
241 copy thereof, to the following persons upon request: 270 audio-video communication recordings, except if requested by:
242 (a) The parties to an electronic record notarized by the 271 (a) A party to the electronic record;
243 online notary public; 272 (b) In a real estate transaction, the title agent,
244 (b) The qualified custodian of an electronic will notarized 273 settlement agent, or title insurer who insured the electronic
245 by the online notary public; 274 record or engaged the online notary public with regard to such
246 (c) The title agent, settlement agent, or title insurer who 275 transaction; or
247 insured the electronic record or engaged the online notary 276 (c) The Department of State pursuant to an investigation
248 public with regard to a real estate transaction; 277 relating to the official misconduct of an online notary public;
249 (d) The online notary public’s RON service provider whose 278 (d) With respect to audio-video communication recordings of
250 services were used by the online notary public to notarize the 279 an online notarization, the online notary public performing that
251 electronic record; 280 notarization; or
252 (e) Any person who is asked to accept a power of attorney 281 (e) With respect to electronic copies of a given series of
253 that was notarized by the online notary public; 282 related electronic records, the RON service provider used for
254 (e)(f) The Department of State pursuant to a notary 283 the online notarization of those records.
255 misconduct investigation; and 284
256 (f)(g) Any other persons pursuant to a subpoena, court 285 If the online notary public or RON service provider charges does
257 order, law enforcement investigation, or other lawful inspection 286 charge a fee, the online notary public or RON service provider
258 demand; 287 must shall disclose the amount of such fee to the requester
259 (g) With respect to audio-video communication recordings of 288 before making the electronic copies or providing access to, or
260 an online notarization, the online notary public performing that 289 making a copy of, the requested audio-video communication
261 notarization; and 290 recordings.
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291 Section 8. Subsection (5) of section 117.265, Florida 320 (2) By January 1, 2020, The Department of State shall:
292 Statutes, is amended to read: 321 (a) Adopt forms, processes, and interim or emergency rules
293 117.265 Online notarization procedures.— 322 necessary to accept applications from and register online
294 (5)(a) An online notary public shall select the RON service 323 notaries public pursuant to s. 117.225.
295 provider to be used to perform an online notarization, and a 324 (b) Publish on its website a list containing each online
296 person may not require the online notary public to use a 325 notary public, the online notary public’s past and present RON
297 particular RON service provider; however, if the online notary 326 service providers, and the effective dates during which the
298 public is required by his or her employer to perform online 327 online notary public used each RON service provider, as
299 notarizations, the employer may require the use of a particular 328 identified pursuant to ss. 117.225(5) and 117.265(5)(b).
300 RON service provider for those online notarizations. 329 (4)(a) A RON service provider must file a self-
301 (b) An online notary public may change his or her RON 330 certification with the Department of State, on a form adopted by
302 service provider or providers from time to time, but shall 331 department rule, confirming that its audio-video communication
303 notify the Department of State of such change, and its effective 332 technology and related processes, services, software, data
304 date, within 30 days thereafter. 333 storage, or other services provided to online notaries public
305 Section 9. Section 117.275, Florida Statutes, is amended to 334 for the purpose of directly facilitating their performance of
306 read: 335 online notarizations satisfy the requirements of this chapter
307 117.275 Fees for online notarization.—An online notary 336 and any rules adopted by the Department of State pursuant to
308 public or the employer of such online notary public may charge a 337 this section. Each certification shall remain active for a
309 fee, not to exceed $25 per signature per document, for 338 period of 2 years from the date of filing, and it must also be
310 performing an online notarization under this part. Fees for 339 updated and refiled within 60 days after the effective date of
311 services other than notarial acts, including any fees charged by 340 any amendment to this chapter or to the rules adopted by the
312 a RON service provider, are not governed by this section, and 341 Department of State pursuant to this chapter. The Department of
313 such services are not considered closing services, as defined in 342 State must publish on its website a list of all RON service
314 s. 627.7711. 343 providers that are the subject of an active self-certification.
315 Section 10. Subsections (2) and (4) of section 117.295, 344 (b) A RON service provider is deemed to have satisfied
316 Florida Statutes, are amended, and subsection (8) is added to 345 tamper-evident technology requirements by use of technology that
317 that section, to read: 346 renders any subsequent change or modification to the electronic
318 117.295 Standards for electronic and online notarization; 347 record evident.
319 rulemaking authority.— 348 (8) A RON service provider may not use, sell, or offer to
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349 sell or transfer to another person for use or sale any personal
350 information obtained under this part which identifies a
351 principal, a witness, or a person named in a record presented
352 for online notarization, except:
353 (a) As necessary to facilitate performance of a notarial
354 act;
355 (b) To effect, administer, enforce, service, or process a
356 record provided by or on behalf of a principal or the
357 transaction of which the record is a part;
358 (c) In accordance with this part and the rules adopted
359 pursuant to this part or any other applicable federal, state, or
360 local law, or to comply with a lawful subpoena or court order;
361 or
362 (d) In connection with a proposed or actual sale, merger,
363 transfer, or exchange of all or a portion of a business or
364 operating unit of the RON service provider, if the personal
365 information concerns only customers of the business or unit and
366 the transferee agrees to comply with the restrictions set forth
367 in this subsection.
368 Section 11. This act shall take effect October 1, 2021.
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Harmsen, Jessie
From: Dover, Brittany N. <Brittany.Dover@dos.myflorida.com>
Sent: Wednesday, January 13, 2021 3:53 PM
To: Harmsen, Jessie
Subject: Online Notaries
Jessie,
Pleasure speaking with you. Per your request, DOS has 6,278 online notaries registered to date.
Thank you,
Brittany N. Dover
Legislative Affairs Director
Department of State
850.245.6509 (office)
850.274.3105 (cell)
i
2019 AGENCY LEGISLATIVE BILL ANALYSIS
AGENCY: Department of State
BILL INFORMATION
BILL NUMBER: SB 228
BILL TITLE: Notaries Public
BILL SPONSOR: Senator Bradlev
EFFECTIVE DATE: October 1, 2021
COMMITTEES OF REFERENCE CURRENT COMMITTEE
1) Commerce and Tourism Commerce & Tourism
2) Judiciary
3) Rules SIMILAR BILLS
BILL NUMBER: N/A
4) N/A
SPONSOR: N/A
5) N/A
PREVIOUS LEGISLATION IDENTICAL BILLS
BILL NUMBER: N/A BILL NUMBER: HB 121
SPONSOR: N/A SPONSOR: Representative Garrison
YEAR: N/A
Is this bill part of an agency package?
LAST ACTION: N/A
BILL ANALYSIS INFORMATION
DATE OF ANALYSIS: 1/7/21
LEAD AGENCY ANALYST: Brittany Dover
ADDITIONAL ANALYST(S): Sean Toner
LEGAL ANALYST: Colleen O Brien
FISCAL ANALYST: Click or tap here to enter text.
POLICY ANALYSIS
2019 Agency Bill Analysis
1. EXECUTIVE SUMMARY
Authorizing an employer of a notary public to require the use of a particular technology and provider in performing a
notarial act with respect to an electronic record; modifying requirements for entries in the electronic journal maintained
by an online notary public; clarifying that an online notary public is entitled to select his or her remote online
notarization service provider; clarifying limitations on fees charged for online notarizations, etc.
2. SUBSTANTIVE BILL ANALYSIS
1. PRESENT SITUATION:
Current Chapter 117, F.S.
• A notary public cannot be required to perform a notarial act with respect to an electronic record with a form of
technology that the notary public has not selected to use.
• Pursuant to section 117.05 the fee a notary charges may not exceed $10 for any notarial act.
• Government-issued identification credential means any approved credential for verifying identity.
• Remote Online Notarization service provider or RON service provider means a person that provides audio-video
communication technology and related processes, services, software, data storage, or other services to online
notaries public for the purpose of directly facilitating their performance of online notarizations.
• A copy of the commission of a notary public is required for registration for an online notary public.
• Requires a Remote Online Notary Public to identify a RON service provider whose audio-video communication
technology and processes for credential analysis and identity-proofing technologies the registrant intends to use
for online notarizations and confirms that such technology and processes satisfy the requirements of this chapter.
• Requires that the online notary public shall retain an uninterrupted and unedited copy of the recording of the
audio-video communication in which an online notarization is performed.
• An online notary must provide electronic copies, upon request, of pertinent entries in the electronic journals and
provide access to related audio-video communication recordings
• An online notary public may charge a fee not to exceed $20 per transaction record for making and delivering
electronic copies of a given series of related electronic records and should disclose the fee to the requestor
before making electronic copies
• Online notary publics, or their employer may charge a fee not to exceed $25 for performing an online notarization
2. EFFECT OF THE BILL:
• A notary public, or remote online notary will be required to select their provider for their electronic act. An online
notary must use a RON service provider. They cannot be required to use a particular provider. However, when
the employer of the notary public requires them to perform electronic notarial acts as part of their job duties, the
employer may require the RON to use a particular technology and provider.
• The fee of a notary public shall not exceed $10 per signature per document
• Allows a passport issued by a foreign government not including the stamp of the United States Bureau of
Citizenship and Immigration Services to be used as government-issued identification credential to verify the
principal s identity.
• Does not require a copy of notary public s commission to be submitted as part of the RON application process;
however, proof of commission or appointment will still be required.
• Requires that a RON applicant identity the RON service provider or providers that the applicant intends to use.
• Requires that the electronic journal entry must indicate the type of notarial act performed, whether an oath or
acknowledgment.
• Requires the RON service provider to retain an uninterrupted and unedited copy of the recording of the audio¬
video communication in which an online notarization was performed.
• Requires an online notary public to provide electronic copies of pertinent entries in the electronic journal and
requires RON service providers to provide access to the related audio-video communication recordings, or a copy
thereof upon request to the parties of the electronic record notarized, qualified custodian of an electronic will
notarized by on online notary public, title agent, settlement agent, or title insurer who insured the electronic record
or engaged the online notary public with regard to a real estate transaction .
• The online notary public and RON service provider may charge a fee of not to exceed $20 per transaction for
making and delivering a copy of electronic records and related audio-video communication recordings.
• An online notary public performing the notarization and the RON service provider used for the online notarization
of the records is not subject to a fee when requesting audio-video communication recordings of an online
2
2019t,Agency Bill Analysis
notarization; nor is the RON service provider used for the online notarization of records with respect to electronic
copies of a given series of related electronic records,
• A RON service provider must disclose fees to the requestor before making electronic copies or providing access
to, or making a copy of, the requested audio-video communication recordings.
• An online notary public may change his or her RON service provider. If they do, they must notify the Department
of State of such change and its effective date within 30 days thereafter.
• Allows an online notary public to charge $25 per si nature per document for performing an online notarization.
Fees charged by a RON service provider are not covered by this act.
• Requires the Department of State to publish a list containing each online notary public, the online notary public s
past and present RON service providers, and the applicable effective dates during which the online notary public
used each RON service provider.
• Requires each RON service provider to file a self-certification with the Department of State confirming that its
audio-video communication technology and related processes, services, software, data storage, or other services
provided to online notaries public for the purposes of directly facilitating their performance of online notarizations
satisfy the requirements of this chapter and any rules adopted by the Department of State. Each certification is
active for 2 years from the date of filing. It must be updated and refiled within 60 days after the effective date of
any amendment to this chapter or rules adopted by the Department of State. The Department of State must
publish on its website a list of all RON service providers that are subject of an active self-certification.
• Effective October 1,2021
3. DOES THE BILL DIRECT OR ALLOW THE AGENCY/BOARD/COMMISSION/DEPARTMENT TO DEVELOP,
ADOPT, OR ELIMINATE RULES, REGULATIONS, POLICIES, OR PROCEDURES? YE ND
If yes, explain: The bill allows the Department of State to adopt rules to specify needed
requirements/standards not specified by law.
Is the change consistent
with the agency’s core YE ND
mission?
Rule(s) impacted (provide 1N-7.001, F.A.C.
references to F.A.C., etc.):
4. WHAT IS THE POSITION OF AFFECTED CITIZENS OR STAKEHOLDER GROUPS?
Proponents and summary Unknown
of position:
Opponents and summary of Unknown
position:
5. ARE THERE ANY REPORTS OR STUDIES REQUIRED BY THIS BILL? YD NE
If yes, provide a n/a
description:
Date Due: n/a
Bill Section Number(s): n/a
6. ARE THERE ANY NEW GUBERNATORIAL APPOINTMENTS OR CHANGES TO EXISTING BOARDS, TASK
FORCES, COUNCILS, COMMISSIONS, ETC. REQUIRED BY THIS BILL? YD NE
Board: n/a
Board Purpose: n/a
3
2019 Agency Bill Analysis
Who Appoints: n/a
Changes: n/a
Bill Section Number(s): n/a
FISCAL ANALYSIS
1. DOES THE BILL HAVE A FISCAL IMPACT TO LOCAL GOVERNMENT? YD ND
Revenues: Unknown
Expenditures: Unknown
Does the legislation Unknown
increase local taxes or
fees? If yes, explain.
If yes, does the legislation Click or tap here to enter text.
provide for a local
referendum or local
governing body public vote
prior to implementation of
the tax or fee increase?
2. DOES THE BILL HAVE A FISCAL IMPACT TO STATE GOVERNMENT? YD ND
Revenues: Unknown
Expenditures: Unknown
Does the legislation contain Click or tap here to enter text.
a State Government
appropriation?
If yes, was this Click or tap here to enter text.
appropriated last year?
DOES THE BILL HAVE A FISCAL IMPACT TO THE PRIVATE SECTOR? YD ND
Revenues: Unknown
Expenditures: Unknown
Other: Click or tap here to enter text.
4. DOES THE BILL INCREASE OR DECREASE TAXES, FEES, OR FINES? YD NK
If yes, explain impact. Click or tap here to enter text.
Bill Section Number:
4
2019. Agency Bill Analysis
TECHNOLOGY IMPACT
1. DOES THE BILL IMPACT THE AGENCY S TECHNOLOGY SYSTEMS (LE. IT SUPPORT, LICENSING
SOFTWARE, DATA STORAGE, ETC.)? YH ND
If yes, describe the This bill will have a significant impact on the Department of State s current
anticipated impact to the technology systems. The bill, if passed, would require DOS to maintain and
agency including any fiscal publish a listing of each online notary public’s RON service providers, active
impact. and inactive, the dates of use for each RON service provider, the name of
each RON service provider, and evidence of their self-certification compliance
by October 1, 2021.
DOS is actively working to implement a new commercial-off-the shelf (COTS)
business registry system, which will allow DOS to: 1.) modernize its business
registry; 2.) provide business owners with new and improved service
deliverables; 3.) improve efficiency and productivity; 4.) provide more accurate
data collection, processing, and retrieval; 5.) further improve statutory
compliance, reporting, and statistical data; 6.) implement new, improved or
revised statutory filing requirements; and 7.) systematically address and
resolve issues such as unauthorized filing activity.
The bill will require additional funding and may require additional deliverables
and/or timeframe be added to the COTS contract in progress. The current
scope of work is based upon existing law which does not require DOS to
maintain and publish a listing of each online notary public’s RON service
providers, active or inactive, the dates of use of each RON service provider,
the name of each RON service provider, nor proof of their self-certification.
FEDERAL IMPACT
1. DOES THE BILL HAVE A FEDERAL IMPACT (I.E. FEDERAL COMPLIANCE, FEDERAL FUNDING, FEDERAL
AGENCY INVOLVEMENT, ETC.)? YD NI l
If yes, describe the N/A
anticipated impact including
any fiscal impact.
ADDITIONAL COMMENTS
The proposed bill needs to clarify:
o DOS would request additional funding and FTE positions in order to perform the additional processing
duties, responsibilities and services specified in the bill,
o The online notary public’s past and present RON service provider(s) currently are not indexed and stored.
There is not a placeholder for this information nor are there for effective dates. DOS recommends the bill
be amended to require this information from the date the bill becomes effective and forward. Previous
RON service providers would not be listed,
o DOS suggests a fee for the RON service provider to file the self-certification.
5
2019 Agency Bill Analysis
LEG L - GENERAL COU SEL S OFFICE EVIEW
Issues/concerns/comments:
6
The Florida Senate
BILL ANALYSIS AND FISCAL IMPACT STATEMENT
(This document is based on the provisions contained in the legislation as of the latest date listed below.)
Prepared By: The Professional Staff of the Committee on Commerce and Tourism
BILL: SB 50
INTRODUCER: Senator Gruters and others
SUBJECT: Sales and Use Tax
DATE: January 22, 2021 REVISED:
ANALYST STAFF DIRECTOR REFERENCE ACTION
1. McMillan McKay CM Favorable
2. FT
3. AP
I. Summary:
SB 50 requires marketplace providers and out-of-state retailers with no physical presence in
Florida to collect Florida’s sales tax on sales of taxable items delivered to purchasers in Florida if
the marketplace provider or out-of-state retailer makes a substantial number of sales into Florida.
A substantial number of remote sales means conducting any number of taxable remote sales in
an amount exceeding $100,000 during the previous calendar year.
The Revenue Estimating Conference has not yet estimated the revenue impact of this bill.
Except as otherwise provided in the bill, the bill takes effect July 1, 2021.
II. Present Situation:
Florida Sales and Use Tax
Florida levies a 6 percent sales and use tax (sales tax) on the sale or rental of most tangible
personal property, admissions,1 transient rentals,2 and a limited number of services, and a 5.5
percent sales and use tax on commercial real estate.3 Chapter 212, F.S., authorizes the levy and
collection of Florida’s sales and use tax, and provides exemptions and credits applicable to
certain items or uses under specified circumstances. Florida requires a dealer to add the tax to the
sales price of the taxable good or service and collect it from the purchaser at the time of sale.4
1
Section 212.04, F.S.
2
Section 212.03, F.S.
3
Section 212.031, F.S.
4
See ss. 212.07(2) and 212.06(3)(a), F.S.
BILL: SB 50 Page 2
In addition to the state tax, s. 212.055, F.S., authorizes counties to impose nine local
discretionary sales surtaxes. A surtax applies to “all transactions occurring in the county which
transactions are subject to the state tax imposed on sales, use, services, rentals, admissions, and
other transactions by [ch. 212, F.S.], and communications services as defined in ch. 202.”5 The
discretionary sales surtax is based on the tax rate imposed by the county where the taxable goods
or services are sold, or are delivered. Discretionary sales surtax rates currently levied vary by
county in a range from 0.5 to 2.5 percent.6
Remote Sales Tax Collection
As discussed above, sales tax is added to the price of taxable goods and the selling dealer is
required to collect the tax from the purchaser at the time of sale.7 A dealer then remits the
collected taxes to the Department of Revenue (department).8
For items sold by an out-of-state dealer and delivered to the in-state purchaser via mail (mail-
order sales), states have relied on their use tax. Florida’s use tax requires an in-state purchaser to
remit to the department a tax on their purchase of an untaxed item.9 However, use tax
compliance is notoriously low. Avalara reports that use tax compliance can be as low as 2
percent and is difficult to enforce.10
States would prefer to have the out-of-state dealer collect the state’s sales tax at the time of sale
and remit those taxes to the state. However, the U.S. Supreme Court has interpreted the
Commerce Clause of the U.S. Constitution to require that a dealer have a “substantial nexus”
with the taxing state before the taxing state may require the dealer to collect its sales taxes.11 For
decades, the U.S. Supreme Court has interpreted this substantial nexus requirement to require
that the dealer have a physical presence (people or property) within the taxing state.12 The Court
reasoned that it was an undue burden on interstate commerce to allow a taxing state to require an
out-of-state dealer located outside of the taxing state to collect tax on behalf of the taxing state.13
Under the “substantial nexus” and “physical presence” standard, Florida, in 1987, adopted its
“mail order sales statute,” which defines a mail order sale to be the sale of tangible personal
property, ordered from a dealer who receives the order in another state and then causes the
property to be transported to a person in this state.14 Although the statute describes dealers who
5
Section 212.054, F.S.
6
Office of Economic and Demographic Research, The Florida Legislature, Florida Tax Handbook, 2020 Local Discretionary
Sales Surtax Rates in Florida’s Counties, 231-232 (2020), available at http://edr.state.fl.us/content/revenues/reports/tax-
handbook/taxhandbook2020.pdf (last visited Jan. 22, 2021).
7
Florida Dept. of Revenue, Florida Sales and Use Tax, available at
http://floridarevenue.com/taxes/taxesfees/Pages/sales_tax.aspx (last visited Jan. 22, 2021).
8
Section 212.15, F.S.
9
See s. 212.06, F.S.
10
Gail Cole, 5 questions about use tax reporting requirements for non-collecting businesses, avalara.com, Feb. 16, 2018,
available at https://www.avalara.com/us/en/blog/2018/02/5-use-tax-reporting-requirements-questions-for-non-collecting-
businesses.html (last visited Jan. 22, 2021).
11
See Complete Auto Transit, Inc. v. Brady, 430 U.S. 274 (1977).
12
National Bellas Hess, Inc., v. Illinois, 386 U.S. 753 (1967); Quill Corporation v. North Dakota, 504 U.S. 298 (1992).
13
Quill Corporation v. North Dakota, at 314-315.
14
See s. 212.0596(1), F.S.
BILL: SB 50 Page 3
“receive [orders] in another state,” application of the statute was still limited by the U.S.
Supreme Court’s physical presence standard.15 In fact, much of the statute is written in terms of
being physically present within Florida.16
Taxation of Mail Order Sales
Section 212.0596, F.S., establishes when a dealer17 who makes a mail-order sale is subject to
Florida’s sales tax. A “mail-order sale” is a sale of tangible personal property, ordered by mail or
other means of communication, from a dealer who receives the order in another state of the
United States, or in a commonwealth, territory, or other area under the jurisdiction of the United
States, and transports the property or causes the property to be transported to a person in
Florida.18
Every dealer as defined in s. 212.06(2)(c), F.S., who makes a mail-order sale is subject to the
power of Florida to levy and collect the tax imposed by this ch. 212, F.S., when:
The dealer is a corporation doing business under the laws of this state or is a person
domiciled in, a resident of, or a citizen of, this state.
The dealer maintains retail establishments or offices in Florida.
The dealer has agents in Florida who solicit business or transact business on behalf of the
dealer.
The property was delivered in Florida in fulfillment of a sales contract that was entered into
in Florida when a person in Florida accepted an offer by ordering the property.
The dealer, by purposefully or systematically exploiting the market provided by Florida by
any media-assisted, media-facilitated, or media-solicited means, creates nexus with Florida.
Through compact or reciprocity with another jurisdiction of the United States, that
jurisdiction uses its taxing power and its jurisdiction over the retailer in support of Florida’s
taxing power.
The dealer consents, expressly or by implication, to the imposition of the tax imposed by ch.
212, F.S.
The dealer is subject to service of process under s. 48.181, F.S.
The dealer’s remote sales are subject to the power of Florida to tax sales or to require the
dealer to collect use taxes under a statute or statutes of the United States.
The dealer owns real property or tangible personal property that is physically in Florida.
The dealer is a corporation that is a member of an affiliated group of corporations and whose
members are eligible to file a consolidated tax return for federal corporate income tax
purposes and any parent or subsidiary corporation in the affiliated group has nexus with
Florida.
The dealer or the dealer’s activities have sufficient connection with or relationship to Florida
or its residents of some type, other than those described above, to create nexus empowering
15
See p. 3, infra, ‘Taxation of Mail Order Sales’ for further discussion of what activities subject a dealer to the levy and
collection of tax pursuant to ch. 212, F.S.
16
See s. 212.0596(2)(j), F.S. (requiring dealers to collect tax on mail order sales if the dealer owns real property or tangible
personal property that is physically in this state…).
17
Section 212.06(2)(a), F.S., defines “dealer” as every person, who manufactures or produces tangible personal property for
sale at retail; for use, consumption, or distribution; or for storage to be used or consumed in Florida.
18
Section 212.0596(1), F.S.
BILL: SB 50 Page 4
this state to tax its mail order sales or to require the dealer to collect sales tax or accrue use
tax.19
Section 212.0596, F.S., also imposes a duty on dealers to cooperate in the collection of taxes,
requires the department to enforce these provisions in other jurisdictions when the other
jurisdiction consents, and specifies that sales tax required under this section is to be collected and
any amount unreturned to a purchaser that is not tax but was collected from the purchaser under
the representation that it was tax constitute funds of the State of Florida from the moment of
collection.
A dealer who makes a mail order sale into this state is exempt from collecting and remitting any
local option surtax on the sale.20 The department may establish rules for collecting the use tax
from unregistered persons who, but for their remote purchases, would not be required to remit
sales or use tax directly to the department.21
Currently, a purchaser who remits use tax on an item imported into Florida for use or
consumption is not required to include in the remittance any local discretionary sales surtax.22
The Wayfair Decision
On June 21, 2018, the U.S. Supreme Court decided South Dakota v. Wayfair.23 Wayfair involved
a new South Dakota sales tax collection statute and Wayfair, Inc., a large online retailer with no
physical presence in South Dakota that sells and ships tangible personal property to customers all
over the United States.
The Wayfair decision overturned the “physical presence test.” The removal of the physical
presence test will expand states’ abilities to collect sales taxes; however, the foundational
constitutional requirement (substantial nexus) remains in place, and thus, the extent of states’
authority is largely unknown at this time.
The facts involved in Wayfair provide the only situation currently known to satisfy all
constitutional requirements for a remote seller without physical presence in the taxing state to
collect and remit a states’ sales and use tax.
For example:
The South Dakota law only requires remote sellers with $100,000 of sales or 200 individual
transactions into South Dakota to collect tax. The law effectively has a “small seller
exception” allowing small retailers—theoretically the ones most burdened by remote sales
tax collection—to avoid collection responsibilities.
The South Dakota law does not apply retroactively.
South Dakota is a member of the Streamlined Sales and Use Tax Agreement.
19
Section 212.0596(2), F.S.
20
Section 212.0596(6), F.S.
21
Section 212.0596(7), F.S.
22
Id.
23
South Dakota v. Wayfair, Inc., 138 S. Ct. 2080 (2018).
BILL: SB 50 Page 5
State Reactions to Wayfair
After the Wayfair decision, 43 states and the District of Columbia have enacted laws requiring
remote sellers to collect the sales tax, and 38 states and the District of Columbia have enacted
laws requiring a marketplace provider/facilitator to collect the sales tax.24
III. Effect of Proposed Changes:
Taxation of Remote Sales and Marketplace Sales
The bill requires marketplace providers and out-of-state retailers with no physical presence in
Florida to collect Florida’s sales tax on sales of taxable items delivered to purchasers in Florida if
the provider or retailer makes a substantial number of sales into Florida.
Section 1 amends the definition of “retail sale” in s. 212.02, F.S., to include a remote sale
and a sale facilitated through a marketplace.
Section 2 amends s. 212.05, F.S., to apply the sales and use tax to remote sales.
Section 3 substantially amends s. 212.0596, F.S. The bill changes the catch line to refer to the
taxation of remote sales, removes references or requirements related to a “mail order sale,” and
provides that a person who makes a substantial number of remote sales is a dealer for purposes
of ch. 212, F.S.
“Substantial number of remote sales” means conducting any number of taxable remote sales in
an amount exceeding $100,000 during the previous calendar year.
Section 4 creates s. 212.05965, F.S., which provides for the taxation of marketplace sales.
The bill defines:
“Marketplace” to mean any physical place or electronic medium through which tangible
personal property is offered for sale.
“Marketplace provider” to mean a person who facilitates a retail sale by a marketplace seller
by listing or advertising for sale by the marketplace seller tangible personal property in a
marketplace, and who directly, or indirectly through agreements or arrangements with third
parties, collects payment from the customer and transmits the payment to the marketplace
seller, regardless of whether the marketplace provider receives compensation or other
consideration in exchange for its services.
Excluded from the definition of marketplace provider is (1) any person who solely provides
travel agency services, (2) a delivery network company, unless the delivery network
company is a registered dealer that notifies all local merchants that sell through the delivery
company’s website or mobile application that the delivery network company must remit
taxes in the same way as a marketplace provider, or (3) a payment processor business whose
24
National Conference of State Legislatures, Remote Sales Tax Collection, (March 13, 2020), available at
https://www.ncsl.org/research/fiscal-policy/e-fairness-legislation-overview.aspx#Marketplace (last visited Jan. 22, 2021).
BILL: SB 50 Page 6
sole activity with respect to marketplace sales is to handle payment transactions between two
parties.
“Marketplace seller” to mean a person who has an agreement with a marketplace provider
and who makes retail sales of tangible personal property through a marketplace owned,
operated, or controlled by the marketplace provider.
Marketplace providers with a physical presence in Florida, or those making or facilitating a
substantial number of remote sales into this state, are subject to the requirements imposed on
dealers by ch. 212, F.S., for registration and for the collection and remittance of taxes. A
marketplace provider must certify to its marketplace sellers that it will collect and remit the tax
to the department.
A marketplace seller may not collect and remit sales tax when the marketplace provider certifies
that it will collect and remit the tax. A marketplace seller must exclude sales made through the
marketplace from the marketplace seller’s tax return. A marketplace seller with a physical
presence in Florida, or that makes a substantial number of remote sales must register, collect, and
remit sales tax on taxable sales made outside of the marketplace.
A marketplace provider must allow the department to examine and audit its books and records. If
the department audits a marketplace provider, the department may not propose a tax assessment
on the marketplace seller for the same retail sales unless the marketplace seller provides incorrect
or incomplete information to the marketplace provider.
The marketplace provider is relieved of liability for the tax, and the marketplace seller or
customer is liable for the tax imposed under this chapter if the marketplace provider
demonstrates that it made a reasonable effort to obtain accurate information related to the retail
sales facilitated through the marketplace from the marketplace seller, but the failure to collect
and pay the correct amount of tax imposed under this chapter was due to incorrect or incomplete
information provided by the marketplace seller to the marketplace provider.
The bill defines:
“Delivery network company” as a person who maintains a website or mobile application
used to facilitate delivery services, the sale of local products, or both.
“Delivery network courier” as an individual who provides delivery services through a
delivery network company website or mobile application using a personal means of
transportation, such as a motor vehicle as defined in s. 320.01(1), F.S., bicycle, scooter, or
other similar means of transportation; using public transportation; or by walking.
“Delivery services” as the pickup and delivery by a delivery network courier of one or more
local products from a local merchant to a customer, which may include, the selection,
collection, and purchase of the local product in connection with the delivery. The term does
not include any delivery requiring more than 75 miles of travel from the local merchant to the
customer.
“Local merchant” as a kitchen, restaurant, or a third-party merchant, including a grocery
store, retail store, convenience store, or business of another type, which is not under common
ownership or control of the delivery network company.
BILL: SB 50 Page 7
“Local product” as any tangible personal property, including food, but excluding freight,
mail, or a package to which postage has been affixed.
Section 5 amends s. 212.06, F.S., to specify that the term “dealer” includes a retailer who
transacts a remote sale or who is a marketplace provider.
Section 6 amends s. 212.12, F.S., to (1) remove the authority given to the executive director of
the department to negotiate a collection allowance with a dealer who makes mail order sales and
(2) delete language that kept dealers who made mail order sales from participating in the state’s
2.5 percent collection allowance.
Section 7 makes conforming changes to s. 212.18 F.S., to change the term “mail order sale” to
“remote sale.”
Section 8 amends s. 212.20(4), F.S., to incorporate s. 212.05965, F.S.
Section 9 makes conforming changes to s. 213.27(5), F.S., to clarify that s. 213.27(5), F.S.,
applies to a person making or facilitating remote sales under s. 212.0596, F.S. or s. 212.05965,
F.S.
Section 10 provides that this act first applies to remote sales made or facilitated on or after July
1, 2021, by a person who made or facilitated a substantial number of remote sales in calendar
year 2020.
Section 11 authorizes the department to adopt emergency rules to implement the bill. The
emergency rulemaking grant is authorized upon the act becoming law, and expires July 1, 2022.
Section 12 provides that if any provision of the bill is found to be invalid, the invalidity does not
affect other provisions or applications of the act which can be given effect without the invalid
provision or application, and to this end, the provisions of this act are severable.
Section 13 provides that this section take effect upon becoming law, and except as otherwise
provided, the bill takes effect July 1, 2021.
IV. Constitutional Issues:
A. Municipality/County Mandates Restrictions:
Not applicable. The bill does not require counties and municipalities to spend funds, limit
their ability to raise revenue, or reduce the percentage of a state tax shared with them.
Therefore, the mandates provision does not apply.
B. Public Records/Open Meetings Issues:
None.
BILL: SB 50 Page 8
C. Trust Funds Restrictions:
None.
D. State Tax or Fee Increases:
Article VII, s. 19 of the Florida Constitution requires new or increased taxes or fees to be
passed by a 2/3 vote of the membership of each house of the Legislature in a separate bill
that contains no other subject.
Since 1990, Florida has required dealers who transact mail-order sales to collect Florida’s
tax when the activities of the dealer have sufficient connection with this state to create
nexus under the U.S. Commerce Clause.25
The bill neither imposes a tax where none was due before, nor does it increase the
amount of a current state tax. Rather, the bill updates Florida’s mail-order statute to align
with U.S. Commerce Clause limitations, as redefined by the U.S. Supreme Court in
Wayfair. As such, the bill does not appear to implicate the requirements of Article VII, s.
19 of the Florida Constitution.
E. Other Constitutional Issues:
The facts involved in Wayfair provide the only situation currently known to satisfy all
constitutional requirements for a remote seller without physical presence in the taxing
state to collect and remit a states’ sales and use tax. The court did not decide the
constitutionality of marketplace providers to collect and remit a states’ sales and use tax
on behalf of retailers who sell on a marketplace.
V. Fiscal Impact Statement:
A. Tax/Fee Issues:
The Revenue Estimating Conference has not yet estimated the revenue impact of this bill.
B. Private Sector Impact:
More remote sellers and marketplace providers will have to collect and remit Florida’s
sales tax.
C. Government Sector Impact:
None.
VI. Technical Deficiencies:
None.
25
Section 212.0596(2)(l), F.S.
BILL: SB 50 Page 9
VII. Related Issues:
None.
VIII. Statutes Affected:
This bill substantially amends the following sections of the Florida Statutes: 212.02, 212.05,
212.0596, 212.06, 212.12, 212.18, 212.20, and 213.27.
This bill creates section 212.05965 of the Florida Statutes.
IX. Additional Information:
A. Committee Substitute – Statement of Changes:
(Summarizing differences between the Committee Substitute and the prior version of the bill.)
None.
B. Amendments:
None.
This Senate Bill Analysis does not reflect the intent or official position of the bill’s introducer or the Florida Senate.
Florida Senate - 2021 SB 50 Florida Senate - 2021 SB 50
By Senator Gruters
23-00343A-21 202150__ 23-00343A-21 202150__
1 A bill to be entitled 30 construction and applicability; amending s. 212.06,
2 An act relating to the sales and use tax; amending s. 31 F.S.; revising the definition of the term “dealer”;
3 212.02, F.S.; expanding the definition of the term 32 conforming provisions to changes made by the act;
4 “retail sale” to include sales facilitated through a 33 amending s. 212.12, F.S.; deleting the authority of
5 marketplace; conforming a provision to changes made by 34 the department’s executive director to negotiate a
6 the act; amending s. 212.05, F.S.; conforming a 35 collection allowance with certain dealers; conforming
7 provision to changes made by the act; amending s. 36 provisions to changes made by the act; amending s.
8 212.0596, F.S.; replacing provisions relating to the 37 212.18, F.S.; conforming a provision to changes made
9 taxation of mail order sales with provisions relating 38 by the act; amending s. 212.20, F.S.; providing
10 to the taxation of remote sales; defining the terms 39 applicability of requirements for refund of taxes
11 “remote sale” and “substantial number of remote 40 adjudicated unconstitutionally collected to taxes
12 sales”; providing that every person making a 41 levied or collected pursuant to marketplace
13 substantial number of remote sales is a dealer for 42 provisions; amending s. 213.27, F.S.; conforming
14 purposes of the sales and use tax; creating s. 43 provisions to changes made by the act; providing
15 212.05965, F.S.; defining terms; providing that 44 applicability; authorizing the department to adopt
16 certain marketplace providers are dealers for purposes 45 emergency rules; providing for expiration of that
17 of the sales and use tax; requiring marketplace 46 authority; providing for severability; providing
18 providers to provide a certain certification to their 47 effective dates.
19 marketplace sellers; specifying requirements for 48
20 marketplace sellers; requiring marketplace providers 49 Be It Enacted by the Legislature of the State of Florida:
21 to allow the Department of Revenue to examine and 50
22 audit their books and records; specifying the 51 Section 1. Paragraph (e) of subsection (14) of section
23 examination and audit authority of the department; 52 212.02, Florida Statutes, is amended, and paragraph (f) is added
24 providing that a marketplace seller, rather than the 53 to that subsection, to read:
25 marketplace provider, is liable for sales tax 54 212.02 Definitions.—The following terms and phrases when
26 collection and remittance under certain circumstances; 55 used in this chapter have the meanings ascribed to them in this
27 authorizing marketplace providers and marketplace 56 section, except where the context clearly indicates a different
28 sellers to enter into agreements for the recovery of 57 meaning:
29 certain taxes, interest, and penalties; providing 58 (14)
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59 (e) The term “retail sale” includes a remote mail order 88 shall by rule adopt any nationally recognized publication for
60 sale, as defined in s. 212.0596(1). 89 valuation of used motor vehicles as the reference price list for
61 (f) The term “retail sale” includes a sale facilitated 90 any used motor vehicle which is required to be licensed pursuant
62 through a marketplace as defined in s. 212.05965(1). 91 to s. 320.08(1), (2), (3)(a), (b), (c), or (e), or (9). If any
63 Section 2. Section 212.05, Florida Statutes, is amended to 92 party to an occasional or isolated sale of such a vehicle
64 read: 93 reports to the tax collector a sales price which is less than 80
65 212.05 Sales, storage, use tax.—It is hereby declared to be 94 percent of the average loan price for the specified model and
66 the legislative intent that every person is exercising a taxable 95 year of such vehicle as listed in the most recent reference
67 privilege who engages in the business of selling tangible 96 price list, the tax levied under this paragraph shall be
68 personal property at retail in this state, including the 97 computed by the department on such average loan price unless the
69 business of making or facilitating remote mail order sales;, or 98 parties to the sale have provided to the tax collector an
70 who rents or furnishes any of the things or services taxable 99 affidavit signed by each party, or other substantial proof,
71 under this chapter;, or who stores for use or consumption in 100 stating the actual sales price. Any party to such sale who
72 this state any item or article of tangible personal property as 101 reports a sales price less than the actual sales price is guilty
73 defined herein and who leases or rents such property within the 102 of a misdemeanor of the first degree, punishable as provided in
74 state. 103 s. 775.082 or s. 775.083. The department shall collect or
75 (1) For the exercise of such privilege, a tax is levied on 104 attempt to collect from such party any delinquent sales taxes.
76 each taxable transaction or incident, which tax is due and 105 In addition, such party shall pay any tax due and any penalty
77 payable as follows: 106 and interest assessed plus a penalty equal to twice the amount
78 (a)1.a. At the rate of 6 percent of the sales price of each 107 of the additional tax owed. Notwithstanding any other provision
79 item or article of tangible personal property when sold at 108 of law, the Department of Revenue may waive or compromise any
80 retail in this state, computed on each taxable sale for the 109 penalty imposed pursuant to this subparagraph.
81 purpose of remitting the amount of tax due the state, and 110 2. This paragraph does not apply to the sale of a boat or
82 including each and every retail sale. 111 aircraft by or through a registered dealer under this chapter to
83 b. Each occasional or isolated sale of an aircraft, boat, 112 a purchaser who, at the time of taking delivery, is a
84 mobile home, or motor vehicle of a class or type which is 113 nonresident of this state, does not make his or her permanent
85 required to be registered, licensed, titled, or documented in 114 place of abode in this state, and is not engaged in carrying on
86 this state or by the United States Government shall be subject 115 in this state any employment, trade, business, or profession in
87 to tax at the rate provided in this paragraph. The department 116 which the boat or aircraft will be used in this state, or is a
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117 corporation none of the officers or directors of which is a 146 For purposes of this sub-subparagraph, the term “foreign
118 resident of, or makes his or her permanent place of abode in, 147 jurisdiction” means any jurisdiction outside of the United
119 this state, or is a noncorporate entity that has no individual 148 States or any of its territories;
120 vested with authority to participate in the management, 149 b. The purchaser, within 90 days from the date of
121 direction, or control of the entity’s affairs who is a resident 150 departure, provides the department with written proof that the
122 of, or makes his or her permanent abode in, this state. For 151 purchaser licensed, registered, titled, or documented the boat
123 purposes of this exemption, either a registered dealer acting on 152 or aircraft outside the state. If such written proof is
124 his or her own behalf as seller, a registered dealer acting as 153 unavailable, within 90 days the purchaser shall provide proof
125 broker on behalf of a seller, or a registered dealer acting as 154 that the purchaser applied for such license, title,
126 broker on behalf of the purchaser may be deemed to be the 155 registration, or documentation. The purchaser shall forward to
127 selling dealer. This exemption shall not be allowed unless: 156 the department proof of title, license, registration, or
128 a. The purchaser removes a qualifying boat, as described in 157 documentation upon receipt;
129 sub-subparagraph f., from the state within 90 days after the 158 c. The purchaser, within 30 days after removing the boat or
130 date of purchase or extension, or the purchaser removes a 159 aircraft from Florida, furnishes the department with proof of
131 nonqualifying boat or an aircraft from this state within 10 days 160 removal in the form of receipts for fuel, dockage, slippage,
132 after the date of purchase or, when the boat or aircraft is 161 tie-down, or hangaring from outside of Florida. The information
133 repaired or altered, within 20 days after completion of the 162 so provided must clearly and specifically identify the boat or
134 repairs or alterations; or if the aircraft will be registered in 163 aircraft;
135 a foreign jurisdiction and: 164 d. The selling dealer, within 30 days after the date of
136 (I) Application for the aircraft’s registration is properly 165 sale, provides to the department a copy of the sales invoice,
137 filed with a civil airworthiness authority of a foreign 166 closing statement, bills of sale, and the original affidavit
138 jurisdiction within 10 days after the date of purchase; 167 signed by the purchaser attesting that he or she has read the
139 (II) The purchaser removes the aircraft from the state to a 168 provisions of this section;
140 foreign jurisdiction within 10 days after the date the aircraft 169 e. The seller makes a copy of the affidavit a part of his
141 is registered by the applicable foreign airworthiness authority; 170 or her record for as long as required by s. 213.35; and
142 and 171 f. Unless the nonresident purchaser of a boat of 5 net tons
143 (III) The aircraft is operated in the state solely to 172 of admeasurement or larger intends to remove the boat from this
144 remove it from the state to a foreign jurisdiction. 173 state within 10 days after the date of purchase or when the boat
145 174 is repaired or altered, within 20 days after completion of the
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175 repairs or alterations, the nonresident purchaser applies to the 204 a decal, or fails to properly account for decals will be
176 selling dealer for a decal which authorizes 90 days after the 205 considered prima facie to have committed a fraudulent act to
177 date of purchase for removal of the boat. The nonresident 206 evade the tax and will be liable for payment of the tax plus a
178 purchaser of a qualifying boat may apply to the selling dealer 207 mandatory penalty of 200 percent of the tax, and shall be liable
179 within 60 days after the date of purchase for an extension decal 208 for fine and punishment as provided by law for a conviction of a
180 that authorizes the boat to remain in this state for an 209 misdemeanor of the first degree, as provided in s. 775.082 or s.
181 additional 90 days, but not more than a total of 180 days, 210 775.083.
182 before the nonresident purchaser is required to pay the tax 211 (VI) Any nonresident purchaser of a boat who removes a
183 imposed by this chapter. The department is authorized to issue 212 decal before permanently removing the boat from the state, or
184 decals in advance to dealers. The number of decals issued in 213 defaces, changes, modifies, or alters a decal in a manner
185 advance to a dealer shall be consistent with the volume of the 214 affecting its expiration date before its expiration, or who
186 dealer’s past sales of boats which qualify under this sub- 215 causes or allows the same to be done by another, will be
187 subparagraph. The selling dealer or his or her agent shall mark 216 considered prima facie to have committed a fraudulent act to
188 and affix the decals to qualifying boats in the manner 217 evade the tax and will be liable for payment of the tax plus a
189 prescribed by the department, before delivery of the boat. 218 mandatory penalty of 200 percent of the tax, and shall be liable
190 (I) The department is hereby authorized to charge dealers a 219 for fine and punishment as provided by law for a conviction of a
191 fee sufficient to recover the costs of decals issued, except the 220 misdemeanor of the first degree, as provided in s. 775.082 or s.
192 extension decal shall cost $425. 221 775.083.
193 (II) The proceeds from the sale of decals will be deposited 222 (VII) The department is authorized to adopt rules necessary
194 into the administrative trust fund. 223 to administer and enforce this subparagraph and to publish the
195 (III) Decals shall display information to identify the boat 224 necessary forms and instructions.
196 as a qualifying boat under this sub-subparagraph, including, but 225 (VIII) The department is hereby authorized to adopt
197 not limited to, the decal’s date of expiration. 226 emergency rules pursuant to s. 120.54(4) to administer and
198 (IV) The department is authorized to require dealers who 227 enforce the provisions of this subparagraph.
199 purchase decals to file reports with the department and may 228
200 prescribe all necessary records by rule. All such records are 229 If the purchaser fails to remove the qualifying boat from this
201 subject to inspection by the department. 230 state within the maximum 180 days after purchase or a
202 (V) Any dealer or his or her agent who issues a decal 231 nonqualifying boat or an aircraft from this state within 10 days
203 falsely, fails to affix a decal, mismarks the expiration date of 232 after purchase or, when the boat or aircraft is repaired or
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233 altered, within 20 days after completion of such repairs or 262 defined herein; however, the following special provisions apply
234 alterations, or permits the boat or aircraft to return to this 263 to the lease or rental of motor vehicles:
235 state within 6 months from the date of departure, except as 264 1. When a motor vehicle is leased or rented for a period of
236 provided in s. 212.08(7)(fff), or if the purchaser fails to 265 less than 12 months:
237 furnish the department with any of the documentation required by 266 a. If the motor vehicle is rented in Florida, the entire
238 this subparagraph within the prescribed time period, the 267 amount of such rental is taxable, even if the vehicle is dropped
239 purchaser shall be liable for use tax on the cost price of the 268 off in another state.
240 boat or aircraft and, in addition thereto, payment of a penalty 269 b. If the motor vehicle is rented in another state and
241 to the Department of Revenue equal to the tax payable. This 270 dropped off in Florida, the rental is exempt from Florida tax.
242 penalty shall be in lieu of the penalty imposed by s. 212.12(2). 271 2. Except as provided in subparagraph 3., for the lease or
243 The maximum 180-day period following the sale of a qualifying 272 rental of a motor vehicle for a period of not less than 12
244 boat tax-exempt to a nonresident may not be tolled for any 273 months, sales tax is due on the lease or rental payments if the
245 reason. 274 vehicle is registered in this state; provided, however, that no
246 (b) At the rate of 6 percent of the cost price of each item 275 tax shall be due if the taxpayer documents use of the motor
247 or article of tangible personal property when the same is not 276 vehicle outside this state and tax is being paid on the lease or
248 sold but is used, consumed, distributed, or stored for use or 277 rental payments in another state.
249 consumption in this state; however, for tangible property 278 3. The tax imposed by this chapter does not apply to the
250 originally purchased exempt from tax for use exclusively for 279 lease or rental of a commercial motor vehicle as defined in s.
251 lease and which is converted to the owner’s own use, tax may be 280 316.003(13)(a) to one lessee or rentee for a period of not less
252 paid on the fair market value of the property at the time of 281 than 12 months when tax was paid on the purchase price of such
253 conversion. If the fair market value of the property cannot be 282 vehicle by the lessor. To the extent tax was paid with respect
254 determined, use tax at the time of conversion shall be based on 283 to the purchase of such vehicle in another state, territory of
255 the owner’s acquisition cost. Under no circumstances may the 284 the United States, or the District of Columbia, the Florida tax
256 aggregate amount of sales tax from leasing the property and use 285 payable shall be reduced in accordance with the provisions of s.
257 tax due at the time of conversion be less than the total sales 286 212.06(7). This subparagraph shall only be available when the
258 tax that would have been due on the original acquisition cost 287 lease or rental of such property is an established business or
259 paid by the owner. 288 part of an established business or the same is incidental or
260 (c) At the rate of 6 percent of the gross proceeds derived 289 germane to such business.
261 from the lease or rental of tangible personal property, as 290 (d) At the rate of 6 percent of the lease or rental price
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291 paid by a lessee or rentee, or contracted or agreed to be paid 320 equipment.
292 by a lessee or rentee, to the owner of the tangible personal 321 c. Electrical power or energy, except that the tax rate for
293 property. 322 charges for electrical power or energy is 4.35 percent. Charges
294 (e)1. At the rate of 6 percent on charges for: 323 for electrical power and energy do not include taxes imposed
295 a. Prepaid calling arrangements. The tax on charges for 324 under ss. 166.231 and 203.01(1)(a)3.
296 prepaid calling arrangements shall be collected at the time of 325 2. Section 212.17(3), regarding credit for tax paid on
297 sale and remitted by the selling dealer. 326 charges subsequently found to be worthless, is equally
298 (I) “Prepaid calling arrangement” has the same meaning as 327 applicable to any tax paid under this section on charges for
299 provided in s. 202.11. 328 prepaid calling arrangements, telecommunication or telegraph
300 (II) If the sale or recharge of the prepaid calling 329 services, or electric power subsequently found to be
301 arrangement does not take place at the dealer’s place of 330 uncollectible. As used in this paragraph, the term “charges”
302 business, it shall be deemed to have taken place at the 331 does not include any excise or similar tax levied by the Federal
303 customer’s shipping address or, if no item is shipped, at the 332 Government, a political subdivision of this state, or a
304 customer’s address or the location associated with the 333 municipality upon the purchase, sale, or recharge of prepaid
305 customer’s mobile telephone number. 334 calling arrangements or upon the purchase or sale of
306 (III) The sale or recharge of a prepaid calling arrangement 335 telecommunication, television system program, or telegraph
307 shall be treated as a sale of tangible personal property for 336 service or electric power, which tax is collected by the seller
308 purposes of this chapter, regardless of whether a tangible item 337 from the purchaser.
309 evidencing such arrangement is furnished to the purchaser, and 338 (f) At the rate of 6 percent on the sale, rental, use,
310 such sale within this state subjects the selling dealer to the 339 consumption, or storage for use in this state of machines and
311 jurisdiction of this state for purposes of this subsection. 340 equipment, and parts and accessories therefor, used in
312 (IV) No additional tax under this chapter or chapter 202 is 341 manufacturing, processing, compounding, producing, mining, or
313 due or payable if a purchaser of a prepaid calling arrangement 342 quarrying personal property for sale or to be used in furnishing
314 who has paid tax under this chapter on the sale or recharge of 343 communications, transportation, or public utility services.
315 such arrangement applies one or more units of the prepaid 344 (g)1. At the rate of 6 percent on the retail price of
316 calling arrangement to obtain communications services as 345 newspapers and magazines sold or used in Florida.
317 described in s. 202.11(9)(b)3., other services that are not 346 2. Notwithstanding other provisions of this chapter,
318 communications services, or products. 347 inserts of printed materials which are distributed with a
319 b. The installation of telecommunication and telegraphic 348 newspaper or magazine are a component part of the newspaper or
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349 magazine, and neither the sale nor use of such inserts is 378 available in an electronic format or otherwise. Additional
350 subject to tax when: 379 divisors shall bear the same mathematical relationship to the
351 a. Printed by a newspaper or magazine publisher or 380 next higher and next lower divisors as the new surtax rate bears
352 commercial printer and distributed as a component part of a 381 to the next higher and next lower surtax rates for which
353 newspaper or magazine, which means that the items after being 382 divisors have been established. When a machine is activated by a
354 printed are delivered directly to a newspaper or magazine 383 slug, token, coupon, or any similar device which has been
355 publisher by the printer for inclusion in editions of the 384 purchased, the tax is on the price paid by the user of the
356 distributed newspaper or magazine; 385 device for such device.
357 b. Such publications are labeled as part of the designated 386 2. As used in this paragraph, the term “operator” means any
358 newspaper or magazine publication into which they are to be 387 person who possesses a coin-operated amusement machine for the
359 inserted; and 388 purpose of generating sales through that machine and who is
360 c. The purchaser of the insert presents a resale 389 responsible for removing the receipts from the machine.
361 certificate to the vendor stating that the inserts are to be 390 a. If the owner of the machine is also the operator of it,
362 distributed as a component part of a newspaper or magazine. 391 he or she shall be liable for payment of the tax without any
363 (h)1. A tax is imposed at the rate of 4 percent on the 392 deduction for rent or a license fee paid to a location owner for
364 charges for the use of coin-operated amusement machines. The tax 393 the use of any real property on which the machine is located.
365 shall be calculated by dividing the gross receipts from such 394 b. If the owner or lessee of the machine is also its
366 charges for the applicable reporting period by a divisor, 395 operator, he or she shall be liable for payment of the tax on
367 determined as provided in this subparagraph, to compute gross 396 the purchase or lease of the machine, as well as the tax on
368 taxable sales, and then subtracting gross taxable sales from 397 sales generated through the machine.
369 gross receipts to arrive at the amount of tax due. For counties 398 c. If the proprietor of the business where the machine is
370 that do not impose a discretionary sales surtax, the divisor is 399 located does not own the machine, he or she shall be deemed to
371 equal to 1.04; for counties that impose a 0.5 percent 400 be the lessee and operator of the machine and is responsible for
372 discretionary sales surtax, the divisor is equal to 1.045; for 401 the payment of the tax on sales, unless such responsibility is
373 counties that impose a 1 percent discretionary sales surtax, the 402 otherwise provided for in a written agreement between him or her
374 divisor is equal to 1.050; and for counties that impose a 2 403 and the machine owner.
375 percent sales surtax, the divisor is equal to 1.060. If a county 404 3.a. An operator of a coin-operated amusement machine may
376 imposes a discretionary sales surtax that is not listed in this 405 not operate or cause to be operated in this state any such
377 subparagraph, the department shall make the applicable divisor 406 machine until the operator has registered with the department
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407 and has conspicuously displayed an identifying certificate 436 lessee of any machine placed in a place of business without a
408 issued by the department. The identifying certificate shall be 437 proper current identifying certificate. Such penalties shall
409 issued by the department upon application from the operator. The 438 apply in addition to all other applicable taxes, interest, and
410 identifying certificate shall include a unique number, and the 439 penalties.
411 certificate shall be permanently marked with the operator’s 440 d. Operators of coin-operated amusement machines must
412 name, the operator’s sales tax number, and the maximum number of 441 obtain a separate sales and use tax certificate of registration
413 machines to be operated under the certificate. An identifying 442 for each county in which such machines are located. One sales
414 certificate shall not be transferred from one operator to 443 and use tax certificate of registration is sufficient for all of
415 another. The identifying certificate must be conspicuously 444 the operator’s machines within a single county.
416 displayed on the premises where the coin-operated amusement 445 4. The provisions of this paragraph do not apply to coin-
417 machines are being operated. 446 operated amusement machines owned and operated by churches or
418 b. The operator of the machine must obtain an identifying 447 synagogues.
419 certificate before the machine is first operated in the state 448 5. In addition to any other penalties imposed by this
420 and by July 1 of each year thereafter. The annual fee for each 449 chapter, a person who knowingly and willfully violates any
421 certificate shall be based on the number of machines identified 450 provision of this paragraph commits a misdemeanor of the second
422 on the application times $30 and is due and payable upon 451 degree, punishable as provided in s. 775.082 or s. 775.083.
423 application for the identifying device. The application shall 452 6. The department may adopt rules necessary to administer
424 contain the operator’s name, sales tax number, business address 453 the provisions of this paragraph.
425 where the machines are being operated, and the number of 454 (i)1. At the rate of 6 percent on charges for all:
426 machines in operation at that place of business by the operator. 455 a. Detective, burglar protection, and other protection
427 No operator may operate more machines than are listed on the 456 services (NAICS National Numbers 561611, 561612, 561613, and
428 certificate. A new certificate is required if more machines are 457 561621). Fingerprint services required under s. 790.06 or s.
429 being operated at that location than are listed on the 458 790.062 are not subject to the tax. Any law enforcement officer,
430 certificate. The fee for the new certificate shall be based on 459 as defined in s. 943.10, who is performing approved duties as
431 the number of additional machines identified on the application 460 determined by his or her local law enforcement agency in his or
432 form times $30. 461 her capacity as a law enforcement officer, and who is subject to
433 c. A penalty of $250 per machine is imposed on the operator 462 the direct and immediate command of his or her law enforcement
434 for failing to properly obtain and display the required 463 agency, and in the law enforcement officer’s uniform as
435 identifying certificate. A penalty of $250 is imposed on the 464 authorized by his or her law enforcement agency, is performing
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465 law enforcement and public safety services and is not performing 494 service taxable under this paragraph and the sale or use of a
466 detective, burglar protection, or other protective services, if 495 service or any other item not taxable under this chapter, the
467 the law enforcement officer is performing his or her approved 496 consideration paid must be separately identified and stated with
468 duties in a geographical area in which the law enforcement 497 respect to the taxable and exempt portions of the transaction or
469 officer has arrest jurisdiction. Such law enforcement and public 498 the entire transaction shall be presumed taxable. The burden
470 safety services are not subject to tax irrespective of whether 499 shall be on the seller of the service or the purchaser of the
471 the duty is characterized as “extra duty,” “off-duty,” or 500 service, whichever applicable, to overcome this presumption by
472 “secondary employment,” and irrespective of whether the officer 501 providing documentary evidence as to which portion of the
473 is paid directly or through the officer’s agency by an outside 502 transaction is exempt from tax. The department is authorized to
474 source. The term “law enforcement officer” includes full-time or 503 adjust the amount of consideration identified as the taxable and
475 part-time law enforcement officers, and any auxiliary law 504 exempt portions of the transaction; however, a determination
476 enforcement officer, when such auxiliary law enforcement officer 505 that the taxable and exempt portions are inaccurately stated and
477 is working under the direct supervision of a full-time or part- 506 that the adjustment is applicable must be supported by
478 time law enforcement officer. 507 substantial competent evidence.
479 b. Nonresidential cleaning, excluding cleaning of the 508 5. Each seller of services subject to sales tax pursuant to
480 interiors of transportation equipment, and nonresidential 509 this paragraph shall maintain a monthly log showing each
481 building pest control services (NAICS National Numbers 561710 510 transaction for which sales tax was not collected because the
482 and 561720). 511 services meet the requirements of subparagraph 3. for out-of-
483 2. As used in this paragraph, “NAICS” means those 512 state use. The log must identify the purchaser’s name, location
484 classifications contained in the North American Industry 513 and mailing address, and federal employer identification number,
485 Classification System, as published in 2007 by the Office of 514 if a business, or the social security number, if an individual,
486 Management and Budget, Executive Office of the President. 515 the service sold, the price of the service, the date of sale,
487 3. Charges for detective, burglar protection, and other 516 the reason for the exemption, and the sales invoice number. The
488 protection security services performed in this state but used 517 monthly log shall be maintained pursuant to the same
489 outside this state are exempt from taxation. Charges for 518 requirements and subject to the same penalties imposed for the
490 detective, burglar protection, and other protection security 519 keeping of similar records pursuant to this chapter.
491 services performed outside this state and used in this state are 520 (j)1. Notwithstanding any other provision of this chapter,
492 subject to tax. 521 there is hereby levied a tax on the sale, use, consumption, or
493 4. If a transaction involves both the sale or use of a 522 storage for use in this state of any coin or currency, whether
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523 in circulation or not, when such coin or currency: 552 to s. 212.08(4)(a)4.
524 a. Is not legal tender; 553 (l) Florists located in this state are liable for sales tax
525 b. If legal tender, is sold, exchanged, or traded at a rate 554 on sales to retail customers regardless of where or by whom the
526 in excess of its face value; or 555 items sold are to be delivered. Florists located in this state
527 c. Is sold, exchanged, or traded at a rate based on its 556 are not liable for sales tax on payments received from other
528 precious metal content. 557 florists for items delivered to customers in this state.
529 2. Such tax shall be at a rate of 6 percent of the price at 558 (m) Operators of game concessions or other concessionaires
530 which the coin or currency is sold, exchanged, or traded, except 559 who customarily award tangible personal property as prizes may,
531 that, with respect to a coin or currency which is legal tender 560 in lieu of paying tax on the cost price of such property, pay
532 of the United States and which is sold, exchanged, or traded, 561 tax on 25 percent of the gross receipts from such concession
533 such tax shall not be levied. 562 activity.
534 3. There are exempt from this tax exchanges of coins or 563 (2) The tax shall be collected by the dealer, as defined
535 currency which are in general circulation in, and legal tender 564 herein, and remitted by the dealer to the state at the time and
536 of, one nation for coins or currency which are in general 565 in the manner as hereinafter provided.
537 circulation in, and legal tender of, another nation when 566 (3) The tax so levied is in addition to all other taxes,
538 exchanged solely for use as legal tender and at an exchange rate 567 whether levied in the form of excise, license, or privilege
539 based on the relative value of each as a medium of exchange. 568 taxes, and in addition to all other fees and taxes levied.
540 4. With respect to any transaction that involves the sale 569 (4) The tax imposed pursuant to this chapter shall be due
541 of coins or currency taxable under this paragraph in which the 570 and payable according to the brackets set forth in s. 212.12.
542 taxable amount represented by the sale of such coins or currency 571 (5) Notwithstanding any other provision of this chapter,
543 exceeds $500, the entire amount represented by the sale of such 572 the maximum amount of tax imposed under this chapter and
544 coins or currency is exempt from the tax imposed under this 573 collected on each sale or use of a boat in this state may not
545 paragraph. The dealer must maintain proper documentation, as 574 exceed $18,000 and on each repair of a boat in this state may
546 prescribed by rule of the department, to identify that portion 575 not exceed $60,000.
547 of a transaction which involves the sale of coins or currency 576 Section 3. Section 212.0596, Florida Statutes, is amended
548 and is exempt under this subparagraph. 577 to read:
549 (k) At the rate of 6 percent of the sales price of each 578 (Substantial rewording of section. See
550 gallon of diesel fuel not taxed under chapter 206 purchased for 579 s. 212.0596, F.S., for present text.)
551 use in a vessel, except dyed diesel fuel that is exempt pursuant 580 212.0596 Taxation of remote sales.—
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581 (1) As used in this chapter, the term: 610 seller, regardless of whether the marketplace provider receives
582 (a) “Remote sale” means a retail sale of tangible personal 611 compensation or other consideration in exchange for its
583 property ordered by mail, telephone, the Internet, or other 612 services.
584 means of communication from a person who receives the order 613 1. The term does not include a person who solely provides
585 outside of this state and transports the property or causes the 614 travel agency services. As used in this subparagraph, the term
586 property to be transported from any jurisdiction, including this 615 “travel agency services” means arranging, booking, or otherwise
587 state, to a location in this state. For purposes of this 616 facilitating for a commission, fee, or other consideration
588 paragraph, tangible personal property delivered to a location 617 vacation or travel packages, rental cars, or other travel
589 within this state is presumed to be used, consumed, distributed, 618 reservations; tickets for domestic or foreign travel by air,
590 or stored to be used or consumed in this state. 619 rail, ship, bus, or other mode of transportation; or hotel or
591 (b) “Substantial number of remote sales” means any number 620 other lodging accommodations.
592 of taxable remote sales in the previous calendar year in which 621 2. The term does not include a person who is a delivery
593 the sum of the sales prices, as defined in s. 212.02(16), 622 network company unless the delivery network company is a
594 exceeded $100,000. 623 registered dealer for purposes of this chapter and the delivery
595 (2) Every person making a substantial number of remote 624 network company notifies all local merchants that sell through
596 sales is a dealer for purposes of this chapter. 625 the delivery network company’s website or mobile application
597 Section 4. Section 212.05965, Florida Statutes, is created 626 that the delivery network company is subject to the requirements
598 to read: 627 of a marketplace provider under this section. As used in this
599 212.05965 Taxation of marketplace sales.— 628 subparagraph, the term:
600 (1) As used in this chapter, the term: 629 a. “Delivery network company” means a person who maintains
601 (a) “Marketplace” means any physical place or electronic 630 a website or mobile application used to facilitate delivery
602 medium through which tangible personal property is offered for 631 services, the sale of local products, or both.
603 sale. 632 b. “Delivery network courier” means a person who provides
604 (b) “Marketplace provider” means a person who facilitates a 633 delivery services through a delivery network company website or
605 retail sale by a marketplace seller by listing or advertising 634 mobile application using a personal means of transportation,
606 for sale by the marketplace seller tangible personal property in 635 such as a motor vehicle as defined in s. 320.01(1), bicycle,
607 a marketplace, and who directly, or indirectly through 636 scooter, or other similar means of transportation; using public
608 agreements or arrangements with third parties, collects payment 637 transportation; or by walking.
609 from the customer and transmits the payment to the marketplace 638 c. “Delivery services” means the pickup and delivery by a
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639 delivery network courier of one or more local products from a 668 this chapter on taxable retail sales made through the
640 local merchant to a customer, which may include the selection, 669 marketplace. Such certification may be included in the agreement
641 collection, and purchase of the local product in connection with 670 between the marketplace provider and marketplace seller.
642 the delivery. The term does not include any delivery requiring 671 (4)(a) A marketplace seller may not collect and remit the
643 more than 75 miles of travel from the local merchant to the 672 tax under this chapter on a taxable retail sale when the sale is
644 customer. 673 made through the marketplace and the marketplace provider
645 d. “Local merchant” means a kitchen, restaurant, or a 674 certifies, as required under subsection (3), that it will
646 third-party merchant, including a grocery store, retail store, 675 collect and remit such tax. A marketplace seller shall exclude
647 convenience store, or business of another type, which is not 676 such sales made through the marketplace from the marketplace
648 under common ownership or control of the delivery network 677 seller’s tax return under s. 212.11.
649 company. 678 (b)1. A marketplace seller who has a physical presence in
650 e. “Local product” means any tangible personal property, 679 this state shall register and shall collect and remit the tax
651 including food, but excluding freight, mail, or a package to 680 imposed under this chapter on all taxable retail sales made
652 which postage has been affixed. 681 outside of the marketplace.
653 3. The term does not include a payment processor business 682 2. A marketplace seller making a substantial number of
654 that is appointed to handle payment transactions from various 683 remote sales as defined in s. 212.0596(1) shall register and
655 channels, such as charge cards, credit cards, or debit cards, 684 shall collect and remit the tax imposed under this chapter on
656 and whose sole activity with respect to marketplace sales is to 685 all taxable retail sales made outside of the marketplace. For
657 handle payment transactions between two parties. 686 the purposes of determining whether a marketplace seller made a
658 (c) “Marketplace seller” means a person who has an 687 substantial number of remote sales, the marketplace seller shall
659 agreement with a marketplace provider and who makes retail sales 688 consider only those sales made outside of the marketplace.
660 of tangible personal property through a marketplace owned, 689 (5)(a) A marketplace provider shall allow the department to
661 operated, or controlled by the marketplace provider. 690 examine and audit its books and records pursuant to s. 212.13.
662 (2) A marketplace provider who has a physical presence in 691 For retail sales facilitated through a marketplace, the
663 this state or who is making or facilitating through a 692 department may not examine or audit the books and records of
664 marketplace a substantial number of remote sales as defined in 693 marketplace sellers, nor may the department assess marketplace
665 s. 212.0596(1) is a dealer for purposes of this chapter. 694 sellers except to the extent that the marketplace provider seeks
666 (3) A marketplace provider shall certify to its marketplace 695 relief under paragraph (b). The department may examine, audit,
667 sellers that it will collect and remit the tax imposed under 696 and assess a marketplace seller for retail sales made outside of
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697 the marketplace under paragraph (4)(b). 726 (9) Chapter 213 applies to the administration of this
698 (b) The marketplace provider is relieved of liability for 727 section to the extent that chapter does not conflict with this
699 the tax on the retail sale and the marketplace seller or 728 section.
700 customer is liable for the tax imposed under this chapter if the 729 Section 5. Paragraph (c) of subsection (2) and paragraph
701 marketplace provider demonstrates to the department’s 730 (a) of subsection (5) of section 212.06, Florida Statutes, are
702 satisfaction that the marketplace provider made a reasonable 731 amended to read:
703 effort to obtain accurate information related to the retail 732 212.06 Sales, storage, use tax; collectible from dealers;
704 sales facilitated through the marketplace from the marketplace 733 “dealer” defined; dealers to collect from purchasers;
705 seller, but that the failure to collect and pay the correct 734 legislative intent as to scope of tax.—
706 amount of tax imposed under this chapter was due to the 735 (2)
707 provision of incorrect or incomplete information to the 736 (c) The term “dealer” is further defined to mean every
708 marketplace provider by the marketplace seller. This paragraph 737 person, as used in this chapter, who sells at retail or who
709 does not apply to a retail sale for which the marketplace 738 offers for sale at retail, or who has in his or her possession
710 provider is the seller if the marketplace provider and 739 for sale at retail; or for use, consumption, or distribution; or
711 marketplace seller are related parties or if transactions 740 for storage to be used or consumed in this state, tangible
712 between a marketplace seller and marketplace buyer are not 741 personal property as defined herein, including a retailer who
713 conducted at arm’s length. 742 transacts a remote mail order sale or a person who is a
714 (6) For purposes of registration pursuant to s. 212.18, a 743 marketplace provider as defined in s. 212.05965.
715 marketplace is deemed a separate place of business. 744 (5)(a)1. Except as provided in subparagraph 2., it is not
716 (7) A marketplace provider and marketplace seller may agree 745 the intention of this chapter to levy a tax upon tangible
717 by contract or otherwise that if a marketplace provider pays the 746 personal property imported, produced, or manufactured in this
718 tax imposed under this chapter on a retail sale facilitated 747 state for export, provided that tangible personal property may
719 through a marketplace for a marketplace seller as a result of an 748 not be considered as being imported, produced, or manufactured
720 audit or otherwise, the marketplace provider has the right to 749 for export unless the importer, producer, or manufacturer
721 recover such tax and any associated interest and penalties from 750 delivers the same to a licensed exporter for exporting or to a
722 the marketplace seller. 751 common carrier for shipment outside the state or mails the same
723 (8) This section may not be construed to authorize the 752 by United States mail to a destination outside the state; or, in
724 state to collect sales tax from both the marketplace provider 753 the case of aircraft being exported under their own power to a
725 and the marketplace seller on the same retail sale. 754 destination outside the continental limits of the United States,
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755 by submission to the department of a duly signed and validated 784 cooperate satisfactorily with this state in collecting taxes on
756 United States customs declaration, showing the departure of the 785 remote mail order sales. No state shall be so determined unless
757 aircraft from the continental United States; and further with 786 it meets all the following minimum requirements:
758 respect to aircraft, the canceled United States registry of said 787 (I) It levies and collects taxes on remote mail order sales
759 aircraft; or in the case of parts and equipment installed on 788 of property transported from that state to persons in this
760 aircraft of foreign registry, by submission to the department of 789 state, as described in s. 212.0596, upon request of the
761 documentation, the extent of which shall be provided by rule, 790 department.
762 showing the departure of the aircraft from the continental 791 (II) The tax so collected shall be at the rate specified in
763 United States; nor is it the intention of this chapter to levy a 792 s. 212.05, not including any local option or tourist or
764 tax on any sale which the state is prohibited from taxing under 793 convention development taxes collected pursuant to s. 125.0104
765 the Constitution or laws of the United States. Every retail sale 794 or this chapter.
766 made to a person physically present at the time of sale shall be 795 (III) Such state agrees to remit to the department all
767 presumed to have been delivered in this state. 796 taxes so collected no later than 30 days from the last day of
768 2.a. Notwithstanding subparagraph 1., a tax is levied on 797 the calendar quarter following their collection.
769 each sale of tangible personal property to be transported to a 798 (IV) Such state authorizes the department to audit dealers
770 cooperating state as defined in sub-subparagraph c., at the rate 799 within its jurisdiction who make remote mail order sales that
771 specified in sub-subparagraph d. However, a Florida dealer will 800 are the subject of s. 212.0596, or makes arrangements deemed
772 be relieved from the requirements of collecting taxes pursuant 801 adequate by the department for auditing them with its own
773 to this subparagraph if the Florida dealer obtains from the 802 personnel.
774 purchaser an affidavit setting forth the purchaser’s name, 803 (V) Such state agrees to provide to the department records
775 address, state taxpayer identification number, and a statement 804 obtained by it from retailers or dealers in such state showing
776 that the purchaser is aware of his or her state’s use tax laws, 805 delivery of tangible personal property into this state upon
777 is a registered dealer in Florida or another state, or is 806 which no sales or use tax has been paid in a manner similar to
778 purchasing the tangible personal property for resale or is 807 that provided in sub-subparagraph g.
779 otherwise not required to pay the tax on the transaction. The 808 c. For purposes of this subparagraph, “sales of tangible
780 department may, by rule, provide a form to be used for the 809 personal property to be transported to a cooperating state”
781 purposes set forth herein. 810 means remote mail order sales to a person who is in the
782 b. For purposes of this subparagraph, “a cooperating state” 811 cooperating state at the time the order is executed, from a
783 is one determined by the executive director of the department to 812 dealer who receives that order in this state.
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813 d. The tax levied by sub-subparagraph a. shall be at the 842 Section 6. Paragraph (a) of subsection (1) and paragraph
814 rate at which such a sale would have been taxed pursuant to the 843 (a) of subsection (5) of section 212.12, Florida Statutes, are
815 cooperating state’s tax laws if consummated in the cooperating 844 amended to read:
816 state by a dealer and a purchaser, both of whom were physically 845 212.12 Dealer’s credit for collecting tax; penalties for
817 present in that state at the time of the sale. 846 noncompliance; powers of Department of Revenue in dealing with
818 e. The tax levied by sub-subparagraph a., when collected, 847 delinquents; brackets applicable to taxable transactions;
819 shall be held in the State Treasury in trust for the benefit of 848 records required.—
820 the cooperating state and shall be paid to it at a time agreed 849 (1)(a)1. Notwithstanding any other law and for the purpose
821 upon between the department, acting for this state, and the 850 of compensating persons granting licenses for and the lessors of
822 cooperating state or the department or agency designated by it 851 real and personal property taxed hereunder, for the purpose of
823 to act for it; however, such payment shall in no event be made 852 compensating dealers in tangible personal property, for the
824 later than 30 days from the last day of the calendar quarter 853 purpose of compensating dealers providing communication services
825 after the tax was collected. Funds held in trust for the benefit 854 and taxable services, for the purpose of compensating owners of
826 of a cooperating state shall not be subject to the service 855 places where admissions are collected, and for the purpose of
827 charges imposed by s. 215.20. 856 compensating remitters of any taxes or fees reported on the same
828 f. The department is authorized to perform such acts and to 857 documents utilized for the sales and use tax, as compensation
829 provide such cooperation to a cooperating state with reference 858 for the keeping of prescribed records, filing timely tax
830 to the tax levied by sub-subparagraph a. as is required of the 859 returns, and the proper accounting and remitting of taxes by
831 cooperating state by sub-subparagraph b. 860 them, such seller, person, lessor, dealer, owner, and remitter
832 g. In furtherance of this act, dealers selling tangible 861 (except dealers who make mail order sales) who files the return
833 personal property for delivery in another state shall make 862 required pursuant to s. 212.11 only by electronic means and who
834 available to the department, upon request of the department, 863 pays the amount due on such return only by electronic means
835 records of all tangible personal property so sold. Such records 864 shall be allowed 2.5 percent of the amount of the tax due,
836 shall include a description of the property, the name and 865 accounted for, and remitted to the department in the form of a
837 address of the purchaser, the name and address of the person to 866 deduction. However, if the amount of the tax due and remitted to
838 whom the property was sent, the purchase price of the property, 867 the department by electronic means for the reporting period
839 information regarding whether sales tax was paid in this state 868 exceeds $1,200, an allowance is not allowed for all amounts in
840 on the purchase price, and such other information as the 869 excess of $1,200. For purposes of this paragraph subparagraph,
841 department may by rule prescribe. 870 the term “electronic means” has the same meaning as provided in
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871 s. 213.755(2)(c). 900 trade show. The following provisions apply to the registration
872 2. The executive director of the department is authorized 901 of exhibitors as dealers under this chapter:
873 to negotiate a collection allowance, pursuant to rules 902 1. An exhibitor whose agreement prohibits the sale of
874 promulgated by the department, with a dealer who makes mail 903 tangible personal property or services subject to the tax
875 order sales. The rules of the department shall provide 904 imposed in this chapter is not required to register as a dealer.
876 guidelines for establishing the collection allowance based upon 905 2. An exhibitor whose agreement provides for the sale at
877 the dealer’s estimated costs of collecting the tax, the volume 906 wholesale only of tangible personal property or services subject
878 and value of the dealer’s mail order sales to purchasers in this 907 to the tax imposed by this chapter must obtain a resale
879 state, and the administrative and legal costs and likelihood of 908 certificate from the purchasing dealer but is not required to
880 achieving collection of the tax absent the cooperation of the 909 register as a dealer.
881 dealer. However, in no event shall the collection allowance 910 3. An exhibitor whose agreement authorizes the retail sale
882 negotiated by the executive director exceed 10 percent of the 911 of tangible personal property or services subject to the tax
883 tax remitted for a reporting period. 912 imposed by this chapter must register as a dealer and collect
884 (5)(a) The department is authorized to audit or inspect the 913 the tax on such sales.
885 records and accounts of dealers defined herein, including audits 914 4. An exhibitor who makes a remote mail order sale pursuant
886 or inspections of dealers who make remote mail order sales to 915 to s. 212.0596 must register as a dealer.
887 the extent permitted by another state, and to correct by credit 916
888 any overpayment of tax, and, in the event of a deficiency, an 917 A person who conducts a convention or a trade show must make his
889 assessment shall be made and collected. No administrative 918 or her exhibitor’s agreements available to the department for
890 finding of fact is necessary prior to the assessment of any tax 919 inspection and copying.
891 deficiency. 920 Section 8. Subsection (4) of section 212.20, Florida
892 Section 7. Paragraph (f) of subsection (3) of section 921 Statutes, is amended to read:
893 212.18, Florida Statutes, is amended to read: 922 212.20 Funds collected, disposition; additional powers of
894 212.18 Administration of law; registration of dealers; 923 department; operational expense; refund of taxes adjudicated
895 rules.— 924 unconstitutionally collected.—
896 (3) 925 (4) When there has been a final adjudication that any tax
897 (f) As used in this paragraph, the term “exhibitor” means a 926 pursuant to s. 212.0596 or s. 212.05965 was levied, collected,
898 person who enters into an agreement authorizing the display of 927 or both, contrary to the Constitution of the United States or
899 tangible personal property or services at a convention or a 928 the State Constitution, the department shall, in accordance with
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929 rules, determine, based upon claims for refund and other 958 Section 11. (1) The Department of Revenue is authorized,
930 evidence and information, who paid such tax or taxes, and refund 959 and all conditions are deemed met, to adopt emergency rules
931 to each such person the amount of tax paid. For purposes of this 960 pursuant to s. 120.54(4), Florida Statutes, for the purpose of
932 subsection, a “final adjudication” is a decision of a court of 961 administering this act.
933 competent jurisdiction from which no appeal can be taken or from 962 (2) Notwithstanding any other law, emergency rules adopted
934 which the official or officials of this state with authority to 963 pursuant to subsection (1) are effective for 6 months after
935 make such decisions has or have decided not to appeal. 964 adoption and may be renewed during the pendency of procedures to
936 Section 9. Subsection (5) of section 213.27, Florida 965 adopt permanent rules addressing the subject of the emergency
937 Statutes, is amended to read: 966 rules.
938 213.27 Contracts with debt collection agencies and certain 967 (3) This section shall take effect upon this act becoming a
939 vendors.— 968 law and expires July 1, 2022.
940 (5) The department may, for the purpose of ascertaining the 969 Section 12. If any provision of this act or its application
941 amount of or collecting any taxes due from a person making or 970 to any person or circumstance is held invalid, the invalidity
942 facilitating remote sales under s. 212.0596 or s. 212.05965 971 does not affect other provisions or applications of the act
943 doing mail order business in this state, contract with any 972 which can be given effect without the invalid provision or
944 auditing agency doing business within or without this state for 973 application, and to this end the provisions of this act are
945 the purpose of conducting an audit of such person mail order 974 severable.
946 business; however, such audit agency may not conduct an audit on 975 Section 13. Except as otherwise expressly provided in this
947 behalf of the department of any person domiciled in this state, 976 act and except for this section, which shall take effect upon
948 person registered for sales and use tax purposes in this state, 977 this act becoming a law, this act shall take effect July 1,
949 or corporation filing a Florida corporate tax return, if any 978 2021.
950 such person or corporation objects to such audit in writing to
951 the department and the auditing agency. The department shall
952 notify the taxpayer by mail at least 30 days before the
953 department assigns the collection of such taxes.
954 Section 10. This act first applies to remote sales made or
955 facilitated on or after July 1, 2021, by a person who made or
956 facilitated a substantial number of remote sales in calendar
957 year 2020.
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CourtSmart Tag Report
Room: EL 110 Case No.: Type:
Caption: Senate Commerce and Tourism Committee Judge:
Started: 1/25/2021 2:31:06 PM
Ends: 1/25/2021 3:18:17 PM Length: 00:47:12
2:31:05 PM Meeting called to order by Chair Hooper
2:31:54 PM Roll call by Committee Administrative Asst (CAA) - Quorum is present
2:32:27 PM Comments by Chair Hooper
2:32:59 PM Committee Members introduce themselves
2:33:38 PM Senator Torres makes comments
2:34:11 PM Senator Gruters makes remarks
2:34:29 PM Senator Burgess makes comments
2:35:07 PM Senator Powell makes remarks
2:35:24 PM Senator Taddeo makes remarks
2:36:06 PM Senator Wright makes comments
2:36:39 PM Senator Hutson makes remarks
2:37:11 PM Senator Garcia makes comments
2:37:45 PM Senator Diaz makes remarks
2:38:10 PM Senator Pizzo makes comments
2:38:53 PM Chair Hooper introduces himself and makes remarks
2:39:18 PM Todd McKay, Staff Director, gives brief overview of the committee
2:41:06 PM Tab 1 - SB 228 on Notaries Public by Senator Bradley
2:41:49 PM Senator Bradley explains the bill
2:43:20 PM Amendment barcode 267620 by Senator Bradley
2:43:30 PM Senator Bradley explains the amendment
2:44:00 PM No questions on the ammendment ,no debate on the ammendment
2:44:33 PM Senator Bradley waves close
2:44:40 PM Ammendment is adopted
2:45:00 PM Back on bills ammended
2:47:50 PM Speakers Kari Hebrank and Warren Husband
2:49:00 PM Roll call on CS/SB 228
2:49:44 PM CS/SB 228 is reported favorably
2:50:12 PM Tab 2 - SB 50 on Sales and Use Tax by Senator Gruters
2:50:59 PM Explanation of bill by Senator Gruters
2:54:17 PM Question of the sponsor?
2:54:26 PM Senator Torres asks questions
2:54:36 PM Senator Gruters responds
2:55:43 PM Speaker Ida Eskamari, Policy Director of Florida Rising
2:56:43 PM Speaker Grace Lovett, V.P. of Governmental Affairs of the Florida Retail Federation
2:57:31 PM Speaker Karen Woodall, Exec Director of Florida Center for Fiscal & Economic Policy
3:01:59 PM Speaker French Brown, Florida Chamber of Commerce
3:03:58 PM Speaker Rich Templin, Florida AFL-CIO
3:07:04 PM Series of speakers waiving in support of the bill
3:11:22 PM Senator Pizzo asks question of a speaker
3:12:22 PM Karen Woodall responds to Senator Pizzo's question
3:13:41 PM Senator Pizzo asks additional question of Ms. Woodall
3:14:19 PM Karen Woodall responds to Senator Pizzo
3:14:30 PM Debate on SB 50
3:14:48 PM Senator Torres in debate
3:15:45 PM Senator Gruters closes on bill
3:16:25 PM Roll call on SB 50
3:17:22 PM SB 50 is reported favorably
3:17:51 PM With no further business, the meeting is adjourned
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