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The Florida Senate, Committee Meeting Expanded Agenda: Commerce and Tourism, April 5, 2011

Summary

This is the expanded agenda of The Florida Senate Committee on Commerce and Tourism for its meeting on Tuesday, April 5, 2011, with Senator Detert as Chair and Senator Dockery as Vice Chair. The agenda lists bills including SB 474 on sales representative contracts and SB 942 on tax credits for research and development. A bill analysis dated April 4, 2011 says SB 474, introduced by Senator Evers, repeals the provision requiring written contracts between principals and commissioned sales representatives, effective July 1, 2011. A bill analysis of SB 942, introduced by Senator Bogdanoff, says the bill creates an R&D tax credit against Florida corporate income tax, with a maximum of $15 million approved by the Department of Revenue during any calendar year.

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“The Florida Senate, Committee Meeting Expanded Agenda: Commerce and Tourism, April 5, 2011.” Archived at Pandemic Darlings, https://pandemicdarlings.com/source-documents/senate-cm-expanded-agenda-7507-01dc8adb48/, SHA-256 a5dc6cb8444a26fb31afb5daa8a91465c16d4c96deb111e1539358e9bb8dbc24.

Full text

2011 Regular Session                                 The Florida Senate
                             COMMITTEE MEETING EXPANDED AGENDA
                                               COMMERCE AND TOURISM
                                                 Senator Detert, Chair
                                              Senator Dockery, Vice Chair

            MEETING DATE:     Tuesday, April 5, 2011
                    TIME:     10:15 a.m.—12:15 p.m.
                  PLACE:      James E. "Jim" King, Jr., Committee Room, 401 Senate Office Building

                  MEMBERS:    Senator Detert, Chair; Senator Dockery, Vice Chair; Senators Flores, Gaetz, Lynn, Montford, and
                              Ring

                                                        BILL DESCRIPTION and
 TAB       BILL NO. and INTRODUCER                   SENATE COMMITTEE ACTIONS                          COMMITTEE ACTION

   1    SB 474                             Sales Representative Contracts; Repeals a provision
        Evers                              relating to sales representative contracts,
        (Identical H 4023, Compare CS/H    commissions, requirements, termination of
        5005)                              agreements, and civil remedies.

                                           CM       04/05/2011
                                           JU
                                           RC


   2    SB 942                             Tax Credits For Research and Development;
        Bogdanoff                          Provides a tax credit for certain research and
        (Similar CS/H 671)                 development expenses. Provides eligibility
                                           requirements for research and development tax
                                           credits. Provides limitations regarding eligibility.
                                           Provides an amount for such credit. Provides a
                                           maximum amount of credit that may be taken during a
                                           single tax year by a business enterprise. Prohibits the
                                           Department of Revenue from unreasonably
                                           withholding approval to sell or transfer an unused tax
                                           credit amount, etc.

                                           CM       04/05/2011
                                           BC


   3    SB 976                             Capital Formation for Infrastructure Projects; Provides
        Bogdanoff                          for creation of the Florida Infrastructure Fund
        (Similar H 943, Compare S 252)     Partnership. Provides the partnership's purpose and
                                           duties. Provides for management of the partnership
                                           by the Florida Opportunity Fund. Authorizes the fund
                                           to lend moneys to the partnership. Authorizes the
                                           partnership to invest in certain infrastructure projects.
                                           Creates the Florida Infrastructure Investment Trust.
                                           Provides for the trust's issuance of certificates to
                                           investment partners who invest in the partnership,
                                           etc.

                                           CM       04/05/2011
                                           BC




                                                                                                                    S-036 (10/2008)
03312011.1452                                                                                                           Page 1 of 3
COMMITTEE MEETING EXPANDED AGENDA
Commerce and Tourism
Tuesday, April 5, 2011, 10:15 a.m.—12:15 p.m.

                                                        BILL DESCRIPTION and
 TAB      BILL NO. and INTRODUCER                    SENATE COMMITTEE ACTIONS                          COMMITTEE ACTION

  4     SB 994                             Public Records/Public Airports; Provides definitions.
        Latvala                            Provides an exemption from public records
        (Compare CS/H 913)                 requirements for proprietary confidential business
                                           information submitted to or held by a public airport
                                           and for any proposal or counterproposal exchanged
                                           between the governing body of a public airport and a
                                           nongovernmental entity relating to the sale, use,
                                           development, or lease of airport land or airport
                                           facilities. Provides for exceptions to the exemptions.
                                           Provides for future legislative review and repeal of the
                                           exemptions under the Open Government Sunset
                                           Review Act. Provides a finding of public necessity.

                                           CA       03/14/2011 Fav/1 Amendment
                                           CM       04/05/2011
                                           GO


  5     SB 1548                            Streamlined Sales and Use Tax Agreement; Revises
        Lynn                               definitions. Specifies certain facilities that are exempt
        (Compare H 455)                    from the transient rentals tax. Eliminates the use of
                                           brackets in the calculation of sales and use taxes.
                                           Provides that an exception relating to food and drink
                                           concessionaire services from the tax on the license or
                                           rental fee for the use of real property is limited to the
                                           space used exclusively for selling and distributing
                                           food and drinks. Provides that the amendment to the
                                           exception from the tax on the license or rental fee for
                                           the use of real property is retroactive and remedial in
                                           nature, etc.

                                           CM       04/05/2011
                                           BC


  6     SB 1626                            Television Picture Tubes; Repeals provisions relating
        Lynn                               to television picture tube labeling requirements.
        (Compare CS/H 4013, CS/H 5005)
                                           CM       04/05/2011


  7     SB 1632                            Florida Industrial Development Corporation; Repeals
        Lynn                               provisions relating to the Florida Industrial
        (Identical H 4033)                 Development Corporation. Deletes references to
                                           conform to changes made by the act.

                                           CM       04/05/2011
                                           BC




                                                                                                                S-036 (10/2008)
03312011.1452                                                                                                       Page 2 of 3
COMMITTEE MEETING EXPANDED AGENDA
Commerce and Tourism
Tuesday, April 5, 2011, 10:15 a.m.—12:15 p.m.

                                                         BILL DESCRIPTION and
 TAB      BILL NO. and INTRODUCER                     SENATE COMMITTEE ACTIONS                       COMMITTEE ACTION

  8     SB 1878                             Jurisdiction of the Courts; Authorizes a person to
        Margolis                            serve process on the Secretary of State if other
        (Identical H 1337)                  representatives of a corporation cannot be served.
                                            Revises the definition of the term "foreign judgment"
                                            for purposes of the Florida Enforcement of Foreign
                                            Judgments Act. Clarifies that an arbitral tribunal
                                            receiving a request for an interim measure to
                                            preserve evidence in a dispute governed by the
                                            Florida International Commercial Arbitration Act need
                                            only consider to the extent appropriate the potential
                                            harm that may occur if the measure is not awarded,
                                            etc.

                                            CM       04/05/2011
                                            JU
                                            BC


  9     SB 2050                             Destination Resorts; Creates the Destination Resort
        Braynon                             Commission within the Department of Revenue.
        (Similar H 1415, S 1708)            Exempts the Destination Resort Commission from
                                            specified provisions of the Administrative Procedure
                                            Act. Creates the Destination Resort Act. Provides that
                                            the Destination Resort Commission is a separate
                                            budget entity from the Department of Revenue.
                                            Provides for the appointment and qualifications of
                                            members of the commission. Provides for the
                                            selection of the chair and vice chair of the
                                            commission. Provides that the chair is the
                                            administrative head of the commission, etc.

                                            CM       04/05/2011
                                            GO
                                            BC


        Presentation by the Agency for Workforce Innovation




                                                                                                              S-036 (10/2008)
03312011.1452                                                                                                     Page 3 of 3
                                                      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 Commerce and Tourism Committee

BILL:           SB 474
INTRODUCER:     Senator Evers
SUBJECT:        Sales representative contracts
DATE:           April 4, 2011                    REVISED:


           ANALYST                    STAFF DIRECTOR                 REFERENCE                                 ACTION
1. McCarthy                         Cooper                                CM              Pre-meeting
2.                                                                        JU
3.                                                                        RC
4.
5.
6.



  I.    Summary:

        This bill repeals s. 686.201, F.S., relating to sales representatives contracts.

        Enacted in 1984, this provision requires a written contract between principal and commissioned
        sales representatives which specifies the terms of the commission.

        In the event that there was no written contract, this provision requires that the sales
        representative be paid within 30 days of termination of the unwritten contract. Should the
        principal not comply with this requirement, the sales representative has a cause of action for
        damages equal to triple the amount of commission found to be due, and reasonable attorney’s
        fees and court costs.

        Under current law, licensed real estate brokers, sales associates, and appraisers are exempt from
        this provision.

        This bill repeals s. 686.201, F.S.


 II.    Present Situation:

        Pursuant to s. 686.201, F.S., when a principal contracts with a sales representative to solicit
        orders within this state, the contract must be in writing and shall set forth the method by which
        the commission is to be computed and paid. The principal must provide the sales representative
        with a signed copy of the contract and shall obtain a signed receipt for the contract from the sales
        representative.
BILL: SB 474                                                                                               Page 2


           In the event the contract between the sales representative and the principal is terminated and the
           contract was not reduced to writing, all commissions due must be paid within 30 days after
           termination. If the principal fails to comply as required, the sales representative has a cause of
           action for damages equal to triple the amount of the commission found to be due. The prevailing
           party in any such action is entitled to an award of reasonable attorney fees and costs.

           This provision does not apply to real estate brokers, sales associates or appraisers licensed
           pursuant to ch. 475, F.S., who are performing within the scope of their license.

           A sales representative means a person or business which contracts with a principal to solicit
           orders and who is compensated, in whole or in part, by commission, but does not include a
           person or business which places orders for his or her own account for resale, or a person who is
           an employee of the business.1

           A principal means a person or business which:
                  1. Manufactures, produces, imports, or distributes a product or service.
                  2. Contracts with a sales representative to solicit orders for the product or service.
                  3. Compensates the sales representative, in whole or in part, by commission.2


III.       Effect of Proposed Changes:

           Section 1 would repeal s. 686.201, F.S. It would eliminate the statutory requirement that
           contracts between sales representatives and principals to solicit orders within this state be in
           writing and the remedies associated with a failure of the parties to have a written contract upon
           termination of the relationship while commissions are still owed.

           Section 2 provides that the act will take effect July 1, 2011.


IV.        Constitutional Issues:

           A.       Municipality/County Mandates Restrictions:

                    None.

           B.       Public Records/Open Meetings Issues:

                    None.

           C.       Trust Funds Restrictions:

                    None.


1
    Section 686.201(1)(c), F.S.
2
    Section 686.201(1)(b), F.S.
 BILL: SB 474                                                                                                                         Page 3

  V.    Fiscal Impact Statement:

        A.       Tax/Fee Issues:

                 None.

        B.       Private Sector Impact:

                 To the extent that the sales representative fails to obtain a written contract for their
                 services, and they have a dispute with the principal over commissions, they will have less
                 leverage in resolving their disputes.

                 Conversely, the principals will no longer be subject to triple the amount of commission
                 found to be due should they lose in a dispute with a commissioned sales representative.

                 To the extent that the relationship between sales representatives and principals is
                 outdated, there will be minimal impact on both parties.

        C.       Government Sector Impact:

                 None

 VI.    Technical Deficiencies:

        None.

VII.    Related Issues:

        There are currently 33 states with laws that offer sales representatives some form of protection
        with respect to their commissions.

VIII.   Additional Information:

        A.       Committee Substitute – Statement of Substantial 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.
                                                      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 Commerce and Tourism Committee

BILL:           SB 942
INTRODUCER:     Senator Bogdanoff
SUBJECT:        Tax Credits for Research and Development
DATE:           March 30, 2011                   REVISED:


           ANALYST                    STAFF DIRECTOR                 REFERENCE                                 ACTION
1. Pugh                             Cooper                                CM              Pre-meeting
2.                                                                        BC
3.
4.
5.
6.



  I.    Summary:

        Congress first enacted a research and development (R&D) tax credit in 1981 to encourage
        scientific initiatives and innovation among U.S. businesses. Currently, 38 states offer R&D tax
        credits against corporate or other state tax liability.

        SB 942 creates an R&D tax credit against Florida corporate income tax liability. The maximum
        amount of R&D tax credits that can be approved by the Department of Revenue (DOR) during
        any calendar year is $15 million. Credits cannot be claimed until the tax year that begins on or
        after January 1, 2012.

        The bill outlines a formula for computing the tax credit. Basically, the credit is equal to 10
        percent of the difference between a business’ qualified R&D expenditures in the current taxable
        year and the average R&D expenditures over the previous 4 tax years. Other key points are:
                An R&D tax credit may not exceed 50 percent of a business enterprise’s corporate tax
                liability in a taxable year, after any other corporate tax credits have been applied.
                To qualify for the tax credit, a business enterprise must be a target industry, as defined in
                s. 288.106, F.S.
                A business enterprise may carry forward any unused tax credit for up to 5 years.
                A business enterprise may transfer or sell its unused credits within 1 year after they were
                originally approved to another business enterprise. The purchasing business or assignee
                must use the tax credits in the same year that the transfer or purchase was made.

        DOR is directed to adopt rules to implement and administer the new R&D tax credit.
        SB 942 creates s. 220.194, F.S., and amends s. 220.02, F.S.
BILL: SB 942                                                                                                       Page 2

    II.   Present Situation:

          Federal tax credit
          The “U.S. Research and Experimentation Tax Credit” was created in 1981 as part of the
          Economic Recovery Tax Act, a comprehensive package of initiatives designed to boost U.S.
          business competitiveness and encourage investment and savings by American taxpayers during a
          period of economic recession.1 Originally, the credit was 25 percent of qualified research
          expenditures in excess over the previous year’s expenditures, and the types of expenditures that
          qualified were limited to scientific or experimental research. Over the years, the tax credit
          formula has been modified several times and the types of eligible expenses broadened.2

          Under current federal law, “qualified research expenses” include wages paid to in-house research
          staff, supplies used in research activities (not including land, improvements to land or certain
          depreciable property), and up to 65 percent of funds paid to contracted personnel for qualified
          research.3 “Qualified research” includes a company’s expenditures that are technological in
          nature and which are intended to be useful in the development of a new or improved business
          process, product, software, formula, invention or other business component that will be used by
          the company or which the company intends to sell, license, or lease.4

          The federal tax credit is an incremental tax credit because a company is only rewarded if it
          increases its R&D spending over a predetermined base period. The amount of the federal tax
          credit can be determined by three different methods, depending in part on how long the company
          has been in business. Under the basic formula, the tax credit is equal to 20 percent of the current
          tax year’s qualified R&D expenses over the base amount, which is calculated using a ratio of
          qualified R&D expenses and gross receipts during the period of 1984 through 1988.5 Newer
          companies can use simpler formulas that still compare current year R&D spending with past
          years.

          Business entities that do not pay federal corporate income tax, such as “S corporations” and
          partnerships, are allowed to “pass-through” their federal R&D credits to shareholders or partners,
          based on these individuals’ shares in such business entities.6

          For the 2008 federal tax year, some 12,736 companies claimed $8.3 billion in R&D tax credits,
          including $167.7 million claimed via “pass-throughs.”7 Manufacturing companies claimed the


1
  “The U.S. Research and Experimentation Tax Credit in the 1990s” by Francisco Moris. National Science Foundation Report
#NSF05-316 published July 2005. Retrieved at http://www.nsf.gov/statistics/infbrief/nsf05316/ and “The Prospects for
Economic Recovery,” prepared by the Congressional Budget Office. Published February 1982. Pertinent information on
pages 87-93. Retrieved at http://www.cbo.gov/ftpdocs/51xx/doc5135/doc03b-Part8.pdf. Sites last visited March 30, 2011.
2
  The U.S. General Accounting Office has prepared two reports over the years that examine changes in the tax credit program
and analyze the program’s impact. GAO/GGD-89-114 is found at http://archive.gao.gov/d26t7/139607.pdf. GAO/GGD-96-
43 is found at http://www.gao.gov/archive/1996/gg96043.pdf.
3
  26 USC sec. 41(b).
4
  26 USC sec. 41(d).
5
  26 USC sec. 41(c).
6
  26 USC sec. 41 (g).
7
  Internal Revenue Service, Statistics of Income Division. Retrievable at
http://www.irs.gov/taxstats/article/0,,id=164402,00.html. Last visited March 30, 2011.
BILL: SB 942                                                                                                    Page 3

        largest percentage of research tax credits, $5.78 billion worth.8 Wages comprised nearly $55.6
        billion of the $67.3 billion in qualified R&D expenditures reported by businesses to the IRS. 9

        Congress reauthorized the R&D tax credit in December through tax year 2011.10

        Other states’ R&D tax credits
        Thirty-eight states have enacted an R&D tax credit.11 The majority of the states appear to use the
        federal definitions for credit eligibility and follow the federal formula for establishing a base
        time period. Some states allow the tax credit to be taken only against their state income tax,
        while others allow it to be taken against a variety of state tax liabilities. Also, some states offer
        the highest tax credit rate to R&D activities done in conjunction with university partners, while
        others make no distinction. Five states12 offer refundable tax credits, meaning those states remit
        to eligible businesses the excess difference between their taxes owed and the amount of R&D tax
        credit they earned.

        Statistics
        Internationally, the United States, in 2007, ranked first in R&D expenditures, at $344 billion,
        most of it spent on defense research.13 The nation’s R&D expenditures as a measure of the Gross
        Domestic Product have remained stable over the last several years around 2.6 percent, which
        ranks 4th internationally, behind Israel, Sweden, and Finland.14 Many nations offer a version of
        R&D tax credits, which are considered an important economic-development tool.15

        According to research16 compiled by the Alliance for Science & Technology Research in
        America, in 2007 Florida’s business R&D ranked 17th in the nation, totaling less than 2 percent
        of the U.S., but private- and public-sector R&D affiliated with state universities ranked in the top
        10 nationally, based on 2006 statistics.

III.    Effect of Proposed Changes:

        SB 942 creates a Florida R&D tax credit program designed to stimulate the development of
        scientific and technological advances by target industry businesses, which in turn may increase
        business competitiveness, create high-wage research jobs in Florida, and develop new products


8
  Ibid.
9
  Ibid.
10
   P.L.111 - 312, December 17, 2010.
11
   “Iowa’s Research Activities Tax Credit Tax Credits Program Evaluation Study.” Iowa Department of Revenue. Published
January 2008. Appendix/Chart 6, on pages 37-41 of the report lists details of all 38 states’ R&D tax credits. See:
http://www.iowa.gov/tax/taxlaw/IDRTaxCreditEvalJan2008.pdf.
12
   Hawaii, Iowa, Louisiana, Nebraska, and New York are the states. Ibid.
13
   “Briefing Note on the United States.” Organisation for Economic and Cooperative Development’s Science, Technology
and Industry Scoreboard 2007. Retrievable at http://www.oecd.org/dataoecd/19/11/39695454.pdf. Last visited March 30,
2011.
14
   Organisation for Economic and Cooperative Development’s Fact Book for 2009. Retrievable at:
http://oberon.sourceoecd.org/vl=5806526/cl=18/nw=1/rpsv/factbook/07/01/01/index.htm. Last visited March 30, 2011.
15
   “2010 Global Survey of R&D Tax Incentives,” prepared by Deloitte and published in January 2011. Available at:
http://www.nam.org/~/media/C917926074BE4CE8A4E7AF2C017D67A2/Global_RD_Survey_Final.pdf.
16
   The Alliance for Science & Technology Research in America, 2010 report. Available at
http://www.usinnovation.org/state/pdf_cvd/CVD10FloridaR&D.pdf. Last visited March 30,2011.
BILL: SB 942                                                                                                                Page 4

         and services for market. The Florida tax credit is modeled after the federal research tax credit in
         Title 26 U.S. Code section 41, and incorporates some of its definitions.

         Section 1: Creates s. 220.194, F.S., which authorizes an R&D tax credit against state corporate
         income taxes. It explains the formula that will be used to compute the actual amount of tax credit
         available to individual eligible businesses.

         For established businesses, the tax credit will be equal to 10 percent of the difference between
         the current tax year’s R&D expenditures and the average of R&D expenditures over the previous
         4 taxable years. For businesses in existence fewer than 4 years, the credit amount is reduced by
         25 percent for each year the business did not exist within the 4-year base period.

         The bill defines a number of terms; key among them are:
                 Business enterprise means any corporation as defined in s. 220.03, F.S., that is also a
                 target industry business17 as defined in s. 288.106(1)(o), F.S. (This is erroneous cross-
                 reference. The correct cross-reference is s. 288.106(2)(t), F.S.); and
                 Qualified research expenses mean research expenses qualifying for the federal credit
                 under section 41 of the Internal Revenue Code for in-house or contract research expenses
                 within Florida. Not eligible is R&D conducted out of state, research excluded by the
                 federal code, and R&D conducted by a business enterprise that is not within its principal
                 business activity.

         The state tax credit taken in any 1 tax year may not exceed 50 percent of the original business
         enterprise’s remaining net corporate income tax liability under ch. 220, F.S., after all other
         credits to which the business is entitled, have been applied.

         Any unused credits may either be carried forward by the business that originally earned it for up
         to 5 years following the year in which the qualified research expenses were incurred, or they may
         be assigned or sold to another corporate income taxpayer who also is a business enterprise, and
         thus a target industry. In the latter instance:
                 The business that earned R&D tax credits may assign or sell them if it has not claimed
                 the credits within 1 year of DOR having approved them.
                 The business that has been assigned the credits or has purchased them must use the
                 credits in the same taxable year in which they were purchased or assigned.
                 Assigned or purchased credits must have been exchanged for at least 75 percent of their
                 face value.

         The maximum amount of R&D credits that may be approved by DOR during any calendar year
         is $15 million.




17
  The “target industry list” actually is a list of industry sectors that meet criteria related to high wage, high growth potential,
and market independence. It is developed by the Governor’s Office of Tourism, Trade, and Economic Development, in
consultation with Enterprise Florida, Inc. The 2011 targeted industry list was approved by OTTED in January and includes
eight categories: Clean Tech; Life Sciences; Information Technology; Aviation/Aerospace; Homeland Security/Defense;
Financial/Professional Services; Emerging Technologies; and Other Manufacturing.
BILL: SB 942                                                                                        Page 5

      Finally, DOR is directed to adopt rules governing the manner and form of the R&D tax credit
      application, and may establish guidelines for businesses seeking to affirm their qualification for
      the credit.

      Section 2: Amends s. 220.02, F.S., to establish the order in which a corporate taxpayer may
      claim the R&D tax credit compared to all other potential corporate income tax credits. The R&D
      tax credit is last in the list.

      Section 3: Specifies that the bill becomes law July 1, 2011, but that the credits cannot be
      claimed prior to the taxable year beginning on or after January 1, 2012.


IV.   Constitutional Issues:

      A.       Municipality/County Mandates Restrictions:

               None.

      B.       Public Records/Open Meetings Issues:

               None.

      C.       Trust Funds Restrictions:

               None.


V.    Fiscal Impact Statement:

      A.       Tax/Fee Issues:

               At its March 4, 2011, meeting, the Revenue Estimating Conference determined by
               consensus that SB 942 will have a negative fiscal impact of $5 million in cash for FY
               2011-2012 and negative $15 million in cash for FYs 2012-2013, 2013-2014, and 2014-
               2015.

      B.       Private Sector Impact:

               Startups as well as established companies could benefit from a state R&D tax credit
               program, either directly and through the credit transfer program, as long as they meet the
               eligibility criteria.

      C.       Government Sector Impact:

               Indeterminate. DOR is likely to incur some personnel and other administrative costs in
               administering the tax credit program, and in modifying forms and software.
 BILL: SB 942                                                                                                                         Page 6

 VI.    Technical Deficiencies:

        As stated above, the reference to the definition for “target industry” is erroneous and should be
        corrected to s. 288.106(2)(t), F.S.

VII.    Related Issues:

        None.

VIII.   Additional Information:

        A.       Committee Substitute – Statement of Substantial 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 - 2011                          COMMITTEE AMENDMENT
     Bill No. SB 976




                              Ì181472(Î181472


                             LEGISLATIVE ACTION
                   Senate             .              House
                                      .
                                      .
                                      .
                                      .
                                      .




     The Committee on Commerce and Tourism (Gaetz) recommended the
     following:


1        Senate Amendment (with title amendment)
2
3        Delete everything after the enacting clause
4    and insert:
5        Section 1. Section 288.9621, Florida Statutes, is amended
6    to read:
7        288.9621 Short title.—This part Sections 288.9621-288.9625
8    may be cited as the “Florida Capital Formation Act.”
9        Section 2. Subsections (1) and (2) of section 288.9622,
10   Florida Statutes, are amended to read:
11       288.9622 Findings and intent.—
12       (1)    The Legislature finds and declares that there is a

                                Page 1 of 17
     4/4/2011 11:13:34 AM                                    CM.CM.03706
     Florida Senate - 2011                          COMMITTEE AMENDMENT
     Bill No. SB 976




                               Ì181472(Î181472


13   need to increase the availability of seed capital and early
14   stage venture equity capital for emerging companies in the
15   state, including, without limitation, enterprises in life
16   sciences, information technology, advanced manufacturing
17   processes, aviation and aerospace, and homeland security and
18   defense, as well as other strategic technologies and
19   infrastructure funding.
20       (2) It is the intent of the Legislature that this part ss.
21   288.9621-288.9625 serve to mobilize private investment in a
22   broad variety of venture capital partnerships in diversified
23   industries and geographies; retain private sector investment
24   criteria focused on rate of return; use the services of highly
25   qualified managers in the venture capital industry regardless of
26   location; facilitate the organization of the Florida Opportunity
27   Fund as an investor in seed and early stage businesses,
28   infrastructure projects, venture capital funds, infrastructure
29   funds, and angel funds; and precipitate capital investment and
30   extensions of credit to and in the Florida Opportunity Fund.
31       Section 3. Section 288.9623, Florida Statutes, is amended
32   to read:
33       288.9623    Definitions.—As used in this part, the term ss.
34   288.9621-288.9625:
35       (1) “Board” means the board of directors of the Florida
36   Opportunity Fund.
37       (2)    “Certificate” means a contract between the trust and
38   an investment partner that guarantees the availability of tax
39   credits for use by the partner, or for transfer or sale under s.
40   288.9628, in order to guarantee the partner’s investment capital
41   in the partnership.

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42       (3) “Commitment agreement” means a contract between the
43   partnership and an investment partner under which the partner
44   commits to providing a specified amount of investment capital in
45   exchange for an ownership interest in the partnership.
46       (4)(2) ”Fund” means the Florida Opportunity Fund.
47       (5) “Infrastructure project” means a capital project in the
48   state for a facility or other infrastructure need in the state
49   with respect to any of the following: water or wastewater
50   system, communication system, power system, transportation
51   system, renewable energy system, ancillary or support system for
52   any of these types of projects, or other strategic
53   infrastructure located within the state.
54       (6) “Investment capital” means the total capital committed
55   by the investment partner for an equity interest in the
56   partnership pursuant to a commitment agreement.
57       (7) “Investment partner” or “partner” means a person, other
58   than the partnership, the fund, or the trust, who purchases an
59   ownership interest in the partnership or a transferee of such
60   interest.
61       (8) “Net capital loss” means an amount equal to the
62   difference between the total investment capital actually
63   advanced by the investment partner to the partnership and the
64   amount of the aggregate actual distributions received by the
65   investment partner.
66       (9) “Partnership” means the Florida Infrastructure Fund
67   Partnership.
68       (10) “Tax credits” means credits issued against the taxes
69   specified in s. 288.9628(7)(c).
70       (11) “Trust” means the Florida Infrastructure Investment

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71   Trust.
72       Section 4. Section 288.9627, Florida Statutes, is created
73   to read:
74       288.9627 Florida Infrastructure Fund Partnership; creation;
75   duties.—
76       (1) The Florida Opportunity Fund shall facilitate the
77   creation of the Florida Infrastructure Fund Partnership, which
78   shall be organized and operated under chapter 620 as a private,
79   for-profit limited partnership or limited liability partnership
80   with the fund as a general partner. The partnership shall manage
81   its business affairs and conduct business consistent with its
82   organizing documents and the purposes described in this section.
83   However, the partnership is not an instrumentality of the state.
84       (2) The primary purpose of the partnership is to raise
85   investment capital and invest the capital in infrastructure
86   projects in the state that promote economic development.
87       (3)(a) The fund, as the general partner of the partnership,
88   shall manage the partnership’s business affairs, including, but
89   not limited to:
90       1. Hiring one or more investment managers to assist with
91   management of the partnership through a solicitation for
92   qualified investment managers for the raising and investing of
93   capital by the partnership. Any such investment manager must
94   have maintained an office in the state for at least 2 years
95   before such solicitation with a full-time investment
96   professional. The evaluation of an investment manager candidate
97   must address the investment manager’s level of experience,
98   quality of management, investment philosophy and process,
99   demonstrable success in fundraising, and prior investment

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100   results.
101       2. Soliciting and negotiating the terms of, contracting
102   for, and receiving investment capital with the assistance of the
103   investment managers or other service providers.
104       3. Receiving investment returns.
105       4. Disbursing returns to investment partners.
106       5. Approving investments.
107       6. Engaging in other activities necessary to operate the
108   partnership.
109       (b) The fund may lend up to $750,000 to the partnership to
110   pay the initial expenses of organizing the partnership and
111   soliciting investment partners.
112       (4)(a) The partnership shall raise funds from investment
113   partners for investment in infrastructure projects in the state
114   by entering into commitment agreements with such partners on
115   terms approved by the fund’s board.
116       (b) The Florida Infrastructure Investment Trust shall,
117   pursuant to s. 288.9628, concurrently with the execution of a
118   commitment agreement with an investment partner, issue a
119   certificate.
120       (c) The partnership shall provide a copy of each commitment
121   agreement to the trust upon execution of the agreement by all
122   parties.
123       (d) The partnership may enter into commitment agreements
124   with investment partners beginning July 1, 2011. The total
125   principal investment capital payable to the partnership under
126   all commitment agreements may not exceed the total aggregate
127   amount of $700 million. However, if the partnership does not
128   obtain commitment agreements totaling at least $100 million by

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129   December 1, 2012, the partnership must cancel any executed
130   agreement and return the investment capital of each investment
131   partner who executed an agreement.
132       (5)(a) The partnership may only invest in an infrastructure
133   project:
134       1. That fulfills an important infrastructure need in the
135   state.
136       2. That raises funding from other sources so that the total
137   amount invested in the project is at least twice the amount
138   invested by the partnership, inclusive of the partnership’s
139   investment.
140       3. For which legal measures exist, appropriate to the
141   individual project, to ensure that the project is not
142   fraudulently closed to the detriment of the residents of the
143   state.
144       (b) The partnership may not invest more than 20 percent of
145   its total available investment capital in any single
146   infrastructure project.
147       (c) The partnership may not invest in any infrastructure
148   project that involves any phase of a project authorized under
149   the Florida Rail Enterprise Act, ss. 341.8201-341.842.
150       (6) The partnership may only invest in an infrastructure
151   project based on an evaluation of the following:
152       (a) A written business plan for the project, including all
153   expected revenue sources.
154       (b) The likelihood of the project’s attracting operating
155   capital from investment partners, grants, or other lenders.
156       (c) The management team for the proposed project.
157       (d) The project’s potential for job creation in the state.

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158       (e) The financial resources of the entity proposing the
159   project.
160       (f) The partnership’s assessment that the project
161   reasonably provides a continuing benefit for residents of the
162   state.
163       (g) Other factors not inconsistent with this section that
164   are deemed by the partnership as relevant to the likelihood of
165   the project’s success.
166       (7) By December 1 of each year beginning in 2011, the
167   partnership shall submit an annual report of its activities to
168   the Governor, the President of the Senate, and the Speaker of
169   the House of Representatives. The annual report must include, at
170   a minimum:
171       (a) An accounting of the amounts of investment capital
172   raised and disbursed by the partnership and the progress of the
173   partnership, including the progress of each infrastructure
174   project in which the partnership has invested.
175       (b) A description of the costs and benefits to the state
176   that result from the partnership’s investments, including a list
177   of infrastructure projects; the costs and benefits of those
178   projects to the state and, if applicable, the county or
179   municipality; the number of businesses and associated industries
180   affected; the number, types, and average annual wages of the
181   jobs created or retained; and the impact on the state’s economy.
182       (c) Independently audited financial statements, including
183   statements that show receipts and expenditures during the
184   preceding fiscal year for the operational costs of the
185   partnership.
186       (8) The partnership may not pledge the credit or taxing

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187   power of the state or any political subdivision thereof and may
188   not make its debts payable from any moneys or resources except
189   those of the partnership. An obligation of the partnership is
190   not an obligation of the state or any political subdivision
191   thereof but is an obligation of the partnership, payable
192   exclusively from the partnership’s resources.
193       (9) The partnership may not invest in an infrastructure
194   project with, or accept investment capital from, a company
195   described in s. 215.472 or a scrutinized company as defined in
196   s. 215.473, and the entity owning an infrastructure project in
197   which the partnership has invested must provide reasonable
198   assurances to the partnership that the entity will not provide
199   such a company or scrutinized company with an ownership interest
200   in the infrastructure project.
201       Section 5. Section 288.9628, Florida Statutes, is created
202   to read:
203       288.9628 Florida Infrastructure Investment Trust; creation;
204   duties; issuance of certificates; applications for tax credits.—
205       (1)(a) There is created the Florida Infrastructure
206   Investment Trust, which shall be organized as a state
207   beneficiary public trust to be administered by a board of
208   trustees. The powers and duties of the board of trustees under
209   this section are deemed to be performed for essential public
210   purposes.
211       (b) The board of trustees shall consist of the Chief
212   Financial Officer, the director of the Office of Tourism, Trade,
213   and Economic Development, and the vice chair of Enterprise
214   Florida, Inc., or their designees. The board of trustees shall
215   appoint an administrative officer who may act on behalf of the

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216   trust under the direction of the board of trustees.
217       (c) Members of the board of trustees and the board’s
218   administrative officer shall serve without compensation but are
219   entitled to reimbursement of their expenses. Each member of the
220   board of trustees has a duty of care to the trust in his or her
221   capacity as a trustee. Neither a member nor the administrative
222   officer may have a financial interest in any investment partner.
223       (2) The trust may hire consultants, retain professional
224   services, issue certificates, sell tax credits in accordance
225   with paragraph (5)(b), expend funds, invest funds, contract,
226   bond or insure against loss, or perform any other act necessary
227   to administer this section.
228       (3)(a) The trust shall, pursuant to s. 288.9627 and this
229   section, issue certificates to investment partners in the
230   Florida Infrastructure Fund Partnership, or their assignees,
231   guaranteeing the availability of tax credits of a maximum amount
232   equal to the investment capital committed by such investment
233   partners to the partnership.
234       (b) The trust and the fund may each seek reimbursement of
235   their respective reasonable costs and expenses from the
236   partnership by charging a fee for the issuance of certificates
237   to investment partners of up to 0.25 percent of the aggregate
238   investment capital committed to the partnership by the
239   investment partners who are issued certificates.
240       (c) The total aggregate amount of all tax credits made
241   available under the terms of certificates issued by the trust
242   may not exceed $700 million, and each certificate must include
243   the maximum amount of the tax credits that may be issued under
244   such certificate, which shall be the total amount of investment

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245   capital committed to the partnership by the investment partner.
246       (d) A certificate shall be issued concurrently with a
247   commitment agreement between the investment partner and the
248   partnership. A certificate issued by the trust must include a
249   specific calendar year maturity date designated by the trust of
250   at least 12 years after issuance. Contingent tax credits may not
251   be claimed or redeemed except by an investment partner or
252   purchaser in accordance with this section and the terms of a
253   certificate issued by the trust.
254       (e) Once investment capital is committed to the partnership
255   by an investment partner pursuant to his or her commitment
256   agreement, the certificate is binding, and the partnership, the
257   trust, and the Department of Revenue may not modify, terminate,
258   or rescind the certificate, except for administrative items,
259   including the assignment or sale of tax credits guaranteed to be
260   available under the terms of a certificate.
261       (4)(a) The partnership shall provide written notice to each
262   investment partner if, on the maturity date of his or her
263   certificate, the partner has a net capital loss. The notice must
264   include, at a minimum:
265       1. A good faith estimate of the fair market value of the
266   partnership’s assets as of the date of the notice.
267       2. The total investment capital of all investment partners
268   as of the date of the notice.
269       3. The total amount of distributions received by the
270   investment partners.
271       4. The amount of the tax credits the investment partner is
272   entitled to be issued by the Department of Revenue.
273       (b) The partnership shall concurrently provide a copy of

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274   each investment partner’s notice to the trust.
275       (c) Upon receipt of the notice from the partnership, each
276   affected investment partner may make a one-time election to:
277       1. Have tax credits issued to the investment partner;
278       2. Have the trust sell, on the partner’s behalf, the tax
279   credits guaranteed to be available under the terms of the
280   partner’s certificate with the proceeds of the sale to be paid
281   to the partner by the trust; or
282       3. Maintain the investment partner’s investment in the
283   partnership.
284       (d) Except as provided in paragraph (6)(c), the election
285   made by an investment partner under paragraph (c) is final and
286   may not be revoked or modified.
287       (e) An investment partner must provide written notice to
288   the partnership and the trust of his or her election within 30
289   days after his or her receipt of the notice from the
290   partnership. If an investment partner fails to provide notice
291   within 30 days, the investment partner is deemed to have elected
292   to maintain his or her investment in the partnership under
293   subparagraph (c)3.
294       (5)(a) If an investment partner makes the election under
295   subparagraph (4)(c)1. to have tax credits issued to him or her,
296   the trust shall apply to the Department of Revenue on the
297   partner’s behalf for issuance of the tax credits in his or her
298   name in an amount equal to such partner’s net capital loss. In
299   order to receive the tax credits, the investment partner must
300   agree in writing to transfer his or her ownership interest in
301   the partnership to the fund.
302       (b) If an investment partner makes the election under

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303   subparagraph (4)(c)2., the trust shall exercise its best efforts
304   to sell the tax credits. In order to receive the proceeds from
305   the trust’s sale of the tax credits, the investment partner must
306   agree in writing to transfer his or her ownership interest in
307   the partnership to the fund. A purchaser’s payment for tax
308   credits must be made to the trust on behalf of the investment
309   partner or, upon the partner’s request, directly to the
310   investment partner. The trust may sell tax credits in an amount
311   not to exceed the lesser of:
312       1. The maximum amount of the tax credits available under
313   the terms of certificate issued to the investment partner; or
314       2. The amount of tax credits necessary to yield net
315   proceeds to the investment partner equal to his or her net
316   capital loss as of the date of the partnership’s notice.
317       (6)(a) Within 30 days after receipt of an investment
318   partner’s election to be issued tax credits under paragraph
319   (5)(a), or within 30 days after the sale of tax credits under
320   paragraph (5)(b), the trust shall apply to the Department of
321   Revenue for issuance of the tax credits on behalf of the partner
322   or on behalf of the purchaser of the tax credits, as applicable.
323   However, the trust’s failure to timely submit an application to
324   the Department of Revenue does not affect the investment
325   partner’s or purchaser’s eligibility for the tax credits.
326       (b) The trust’s application for tax credits must include
327   the partnership’s certification of the amount of tax credits to
328   be issued, the identity of the taxpayer to whom the tax credits
329   are to be issued, and the tax against which the credits shall be
330   applied. The Department of Revenue shall issue the tax credits
331   within 30 days after receipt of a timely and complete

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332   application.
333       (c) The trust shall provide the investment partner with
334   written notice if, within 90 days after the partner’s election,
335   the trust is unable to sell enough tax credits to yield net
336   proceeds to the investment partner equal to his or her net
337   capital loss as of the date of the partnership’s notice and tax
338   credits available under the terms of the partner’s certificate
339   remain unsold. Within 30 days after receipt of such notice, the
340   investment partner may:
341       1. Revoke his or her prior election and make a new election
342   under paragraph (4)(c); or
343       2. Modify the election and:
344       a. Have unsold tax credits issued to him or her, to the
345   extent that unsold tax credits are available, in an amount equal
346   to the partner’s net capital loss, less the proceeds of any sold
347   credits; or
348       b. Have the trust continue to sell tax credits until the
349   partner’s net capital loss is satisfied or the maximum amount of
350   tax credits available under the partner’s certificate is
351   reached, whichever occurs first.
352
353   Within 30 days after such modified election, the trust shall
354   apply to the Department of Revenue in accordance with paragraph
355   (a) for issuance of tax credits on behalf of the investment
356   partner and on behalf of the purchasers in the amount of their
357   purchased credits.
358       (7)(a) The Department of Revenue may not issue more than
359   $700 million in tax credits. The trust may not approve tax
360   credits in excess of the total capital committed through

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361   commitment agreements.
362       (b) The amount of tax credits that may be claimed by the
363   owner of the credits, or applied against state taxes, in any one
364   state fiscal year may not exceed an amount equal to $150 million
365   multiplied by a fraction the numerator of which is the amount of
366   credits that the Department of Revenue issued to such owner and
367   the denominator of which is the amount of all credits that the
368   Department of Revenue issued to all tax credit owners.
369       (c) Tax credits issued by the Department of Revenue under
370   this section may be used by the owner of the credits as an
371   offset against any state taxes owed to the state under chapter
372   212, chapter 220, or ss. 624.509 and 624.5091. The offset may be
373   applied by the owner on any return for an eligible tax due on or
374   after the date that the credits are issued by the Department of
375   Revenue but within 7 years after the credits are issued. The
376   owner of the tax credits may elect to have the amount authorized
377   in the credits, or any portion thereof, claimed as a refund of
378   taxes paid rather than applied as an offset against eligible
379   taxes if such election is made within 7 years after the credits
380   are issued.
381       (d) To the extent that tax credits issued under this
382   section are used by their owner either as credits against taxes
383   due or to obtain payment from the state, the amount of such
384   credits becomes an obligation to the state by the partnership,
385   secured exclusively by the ownership interest transferred to the
386   fund by the investment partner whose investment generated the
387   tax credits. In such case, the state’s recovery is limited to
388   such forfeited ownership interest. The Department of Revenue
389   shall account for tax credits used under this section and make

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390   such information available to the partnership. The fund, as
391   general partner, is not liable to the state for repayment of the
392   used tax credits.
393       (e) Any certificate and related tax credits issued under
394   this section are transferable in whole or in part by their
395   owner. An owner of a certificate or tax credits must notify the
396   trust and the Department of Revenue of any such transfer.
397       (8) The Department of Revenue, upon the request of the
398   trust, shall provide the trust with a written assurance that the
399   certificates issued by the trust will be honored by the
400   Department of Revenue as provided in this section.
401       (9) Chapter 517 does not apply to the certificates and tax
402   credits transferred or sold under this section.
403       Section 6. Paragraph (dd) is added to subsection (8) of
404   section 213.053, Florida Statutes, as amended by chapter 2010-
405   280, Laws of Florida, to read:
406       213.053 Confidentiality and information sharing.—
407       (8)   Notwithstanding any other provision of this section,
408   the department may provide:
409       (dd) Information relative to tax credits under ss. 288.9627
410   and 288.9628 to the Florida Infrastructure Fund Partnership and
411   the Florida Infrastructure Investment Trust.
412
413       Disclosure of information under this subsection shall be
414   pursuant to a written agreement between the executive director
415   and the agency. Such agencies, governmental or nongovernmental,
416   shall be bound by the same requirements of confidentiality as
417   the Department of Revenue. Breach of confidentiality is a
418   misdemeanor of the first degree, punishable as provided by s.

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419   775.082 or s. 775.083.
420       Section 7. This act shall take effect July 1, 2011.
421
422
423   ================= T I T L E     A M E N D M E N T ================
424   And the title is amended as follows:
425       Delete everything before the enacting clause
426   and insert:
427                            A bill to be entitled
428       An act relating to capital formation for infrastructure
429   projects; amending ss. 288.9621, 288.9622, and 288.9623, F.S.;
430   conforming a short title, revising legislative findings and
431   intent, and providing definitions for the Florida Capital
432   Formation Act; conforming cross-references; creating s.
433   288.9627, F.S.; providing for creation of the Florida
434   Infrastructure Fund Partnership; providing the partnership’s
435   purpose and duties; providing for management of the partnership
436   by the Florida Opportunity Fund; authorizing the fund to lend
437   moneys to the partnership; requiring the partnership to raise
438   funds from investment partners; providing for commitment
439   agreements with and issuance of certificates to investment
440   partners; authorizing the partnership to invest in certain
441   infrastructure projects; requiring the partnership to submit an
442   annual report to the Governor and Legislature; prohibiting the
443   partnership from pledging the credit or taxing power of the
444   state or its political subdivisions; prohibiting the partnership
445   from investing in projects with or accepting investments from
446   certain companies; creating s. 288.9628, F.S.; creating the
447   Florida Infrastructure Investment Trust; providing for powers

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448   and duties, a board of trustees, and an administrative officer
449   of the trust; providing for the trust’s issuance of certificates
450   to investment partners; specifying that the certificates
451   guarantee the availability of tax credits under certain
452   conditions; authorizing the trust and the fund to charge fees;
453   limiting the amount of tax credits that may be claimed or
454   applied against state taxes in any year; providing for the
455   redemption of certificates or sale of tax credits; providing for
456   the issuance of the tax credits by the Department of Revenue;
457   specifying the taxes against which the credits may be applied;
458   limiting the period within which tax credits may be used;
459   providing for the state’s obligation for use of the tax credits;
460   limiting the liability of the fund; providing for the
461   transferability of certificates and tax credits; requiring the
462   department to provide a certain written assurance to the trust
463   under certain circumstances; specifying that certain provisions
464   regulating securities transactions do not apply to certificates
465   and tax credits transferred or sold under the act; amending s.
466   213.053, F.S.; authorizing the department to disclose certain
467   information to the partnership and the trust relative to certain
468   tax credits; providing an effective date.
469




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                                                      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 Commerce and Tourism Committee

BILL:           SB 976
INTRODUCER:     Senator Bogdanoff
SUBJECT:        Capital Formation for Infrastructure Projects
DATE:           April 4, 2011                    REVISED:


           ANALYST                    STAFF DIRECTOR                 REFERENCE                                 ACTION
1. Pugh                             Cooper                                CM              Pre-meeting
2.                                                                        BC
3.
4.
5.
6.



  I.    Summary:

        In 2007 the Legislature created the Florida Opportunity Fund (FOF) as a $29.5 million, state-
        supported foray into venture capital investments to assist young Florida companies representing
        certain industry sectors. The FOF’s mission has broadened since then, and as of June 30, 2010,
        the fund had invested just over $3 million – matched on a $2-to-$1 basis by private investment
        partners – into six investment fund accounts. The fund’s private investment partners benefit only
        if the investment funds make money. Meanwhile, other states encourage private investors to
        participate in their venture-capital programs by awarding them contingent tax credits, claimable
        if their investments in individual companies fail to produce earnings to recoup the original
        principal investments.

        SB 976 creates a new venture capital investment program, the Florida Infrastructure Fund
        Partnership (partnership). The partnership takes a different approach than the FOF and other
        states’ venture capital programs: it will award up to $700 million in certificates for contingent
        state tax credits for an equal amount in private investments in strategic infrastructure projects.
        The credits are only redeemable to private investors to recoup all or a portion of their equity
        investments – if the projects do not achieve according to expectations. The earliest the credits
        can be claimed is 2023.

        The FOF will serve as the general partner for the partnership. A new entity, the Florida
        Infrastructure Investment Trust (trust), is created to administer the certificates and contingent tax
        credits associated with the new investment program.

        SB 976 creates ss. 288.9627 and 288.9628, F.S., and amends ss. 288.9621, 288.9622, and
        288.9623, F.S.
BILL: SB 976                                                                                                         Page 2

    II.   Present Situation:

          The Venture Capital Industry1
          “Venture capital” is money provided by investment professionals who invest alongside
          management in young, rapidly growing companies that have the potential to develop into
          significant economic contributors. Venture capital is an important source of equity for startup
          companies.

          Venture capital supports entrepreneurial talent and appetite by providing funds to develop ideas
          and basic science into products and services. Venture capital funds build companies from the
          simplest form – perhaps just the entrepreneur and an idea expressed as a business plan – to
          freestanding, mature organizations. Venture capitalists generally:
                  Finance new and rapidly growing companies;
                  Purchase equity securities;
                  Assist in the development of new products or services;
                  Add value to the company through active participation;
                  Take higher risks with the expectation of higher rewards; and
                  Have a long-term orientation.

          Venture capitalists actively work with the company’s management by contributing their
          experience and business savvy gained from helping other companies with similar growth
          challenges. A venture capitalist may invest before there is a real product or company organized,
          known as “seed investing,” or may provide capital to a company in its first or second stages of
          development known as “early stage investing.” Venture capitalists mitigate their risks by
          developing a portfolio of young companies into a single venture fund.

          Over the past decade, a number of states have adopted programs targeting the formal venture
          capital industry. Programs fall into three approaches:2
                  Direct investment by state agencies to individual businesses through state-controlled
                  institutions;
                  Investment by state agencies or pension funds into privately managed funds or a portfolio
                  of privately managed funds, to expand local venture capital; and
                  Private investment spurred by state’s offering tax credits or other incentives for
                  qualifying investments.

          Venture Capital in Florida
          Florida ranked 15th in the United States in calendar year 2010 in terms of venture capital
          investment, with Florida companies receiving about $190 million, down about 35 percent from
          the previous year.3



1
  The primary source for information in this section is the National Venture Capital Association website, including the 2011
NVCA Annual Yearbook, available at http://www.nvca.org/def.html . Last visited March 30, 2011.
2
  Economic Development Finance. Karl F. Seidman. Published in 2005 by Sage Publications. On file with the Senate
Commerce and Tourism Committee. Information on page 253.
3
  Information reported in Feb. 6, 2011, Orlando Sentinel article, on file with the Senate Commerce and Tourism Committee,
and based on the national Moneytree survey by PriceWatera http://www.floridaventureforum.org/newsletter.asp.
BILL: SB 976                                                                                               Page 3

        An earlier study indicated that the revenue of venture-backed companies headquartered in
        Florida in 2008 was $75.5 million – ranked 9th in the nation – and these companies’ employment
        totaled 242,074 – ranked 11th nationally.4

        The Florida Opportunity Fund (FOF)
        Created by the Legislature in 2007,5 the FOF was intended to attract venture capital investment
        into targeted Florida industries by providing a state match. The FOF is organized as a private,
        not-for-profit corporation under ch. 617, F.S., with a 5-member board of directors selected by an
        EFI appointments committee. The FOF’s administrative staff is provided by EFI, and has a
        separate investment manager, Florida First Partners, comprised of Florida-based MILCOM
        Venture Partners6 and the Credit Suisse Customized Fund Investment Group.7

        The Legislature appropriated $29.5 million for investments from the FOF in FY 2007-2008.

        Initial charge
        The FOF was established as a fund-of-funds program, meaning that it could only invest in
        investment funds, not directly in individual businesses; additionally, the investment funds had to
        match the state $2 for every $1 it invested. The emphasis was on “seed” and early-stage
        investments, because proponents of creating the FOF concluded that these types of companies
        were least likely to have access to venture funding and traditional financing. Targeted industries
        for the FOF investments included, but were not limited to, life sciences, information technology,
        advanced manufacturing processes, aviation and aerospace, and homeland security and defense.

        To be eligible for state participation, an investment fund had to have an experienced and
        successful investment manager or team, and must focus on investment opportunities in Florida.

        The FOF invested in its first fund in FY 08-09: $594,000 in Element Partners II, according to
        FOF’s financial statements. As of June 30, 2010, the FOF had six investment fund partners and
        had invested just over $3 million.

        Expansion of investment authority
        In 2009, the Florida Legislature amended s. 288.9624, F.S., to allow the FOF to make direct
        investments, including loans, in individual businesses and infrastructure projects; to form or
        operate other entities; and to accept funds from other public and private sources for use as
        investments.8 These direct investments must be made in Florida infrastructure projects, or in
        businesses that are Florida-based or have significant business activities in Florida and operate in
        technology sectors that are strategic to Florida, including the original list of industry types. The
        FOF may not use its original appropriation of $29.5 million to make direct investments or for
        any purposes not specified in the original legislation.


4
  Venture Impact: The Economic Importance of Venture Capital-Backed Companies to the U.S. Economy. Prepared by
Global Insight. Information on Page 14. Available at:
http://www.nvca.org/index.php?option=com_content&view=article&id=255&Itemid=103. Last visited March 30, 2011.
5
  HB 83 (ch. 2007-189, L.O.F.)
6
  More information available at http://www.milcomvp.com/.
7
  More information available at https://www.credit-suisse.com/us/en/.
8
  HB 7031 (ch. 2009-251, L.O.F.)
BILL: SB 976                                                                                                    Page 4

        In May 2010, the FOF launched a direct investment program with the Florida Energy and
        Climate Commission, a 9-member board housed administratively in the Governor’s Office that is
        the lead entity for state energy and climate-change programs and policies. This new FOF fund is
        expected to increase the availability of investment capital in Florida for businesses engaged in
        developing or producing energy-efficient or renewable energy (EE/RE) products or services. The
        FOF has access to $36 million initially in federal funds to make investments in qualifying
        businesses. Fund investments are restricted by statute to be used for facility and equipment
        improvement with EE/RE products; acquisition or demonstration of renewable energy products;
        and improvement of existing production, manufacturing, assembly, or distribution processes to
        reduce consumption or increase the efficient use of energy in such processes.

        Reporting Requirements
        The FOF is required by statute to submit an annual report by December 1 of each year to the
        Governor, the President of the Senate, and the Speaker of the House of Representatives that
        includes, at a minimum:
                An accounting of the amount of investments disbursed by the FOF fund;
                The progress of the FOF in accomplishing its responsibilities;
                A description of the benefits to the state resulting from the FOF, including the number of
                businesses and jobs created, the number of associated industries started, and the growth
                of related research projects; and
                Independently audited financial statements for the FOF that show receipts and
                expenditures during the preceding fiscal year for personnel, administration, and
                operating costs.

        Infrastructure Funding in Florida
        For nearly 6 decades, Florida has been one of the fastest-growing states in the nation, with
        population expanding from 3 million in 1950 to nearly 19 million in 2010.9 Demand for energy,
        transportation, and communication systems expanded rapidly over the past several decades.
        Current projections suggest Florida may add an additional 5 million new residents by the year
        2030.10 Employment, tourism, gross state product, and income will expand as well, contributing
        to growth in demand for strategic infrastructure.

        In order to meet future capacity over the next 20-25 years, it is estimated that Florida will need:
                $47.0 billion for highway and rail infrastructure; 11
                $29.9 billion for water and wastewater facilities and infrastructure;12
                $3.5 billion for aviation facilities and infrastructure;13
                $2.8 billion for seaport facilities and infrastructure;14 and

9
  2010 Census, Apportionment Population and Number of Representatives by State. United States Census Bureau. Interactive
map at http://2010.census.gov/2010census/data/. Site last visited March 31, 2011.
10
   Florida Census Day Population: 1970-2030, Office of Economic and Demographic Research, August 2010.
  http://edr.state.fl.us/Content/population-demographics/data/index.cfm. Last visited March 31, 2011.
11
   Strategic Intermodal System Unfunded Needs Plan, Florida Department of Transportation, May 2006.
  http://www.dot.state.fl.us/planning/systems/mspi/sisnplan.shtm. Site last visited March 31, 2011.
12
   Clean Watersheds Needs Survey 2008 Report to Congress, United States Environmental Protection Agency.
  http://water.epa.gov/scitech/datait/databases/cwns/2008reportdata.cfm. Site last visited March 31, 2011.
13
   Strategic Intermodal System Unfunded Needs Plan, May 2006.
14
   Strategic Intermodal System Unfunded Needs Plan, May 2006.
BILL: SB 976                                                                                                      Page 5

                 $2.5 billion for storm water management.15

        Contingent Tax Credit Programs
        Contingent tax credits help raise money for state-affiliated venture capital initiatives without
        immediately affecting state revenues. Contingent tax credit programs are statutory state
        guarantees established to incentivize venture capital investment into state target industries. Eight
        states – Arkansas, Iowa, Michigan, Ohio, Oklahoma, Oregon, South Carolina and Utah – have
        initiated programs authorizing the issuance of contingent tax credits to investors in state-
        sponsored fund of funds, providing investments in companies.16 It does not appear that any state
        has created an infrastructure funding program backed by contingent state tax credits that is
        similar to the one proposed in SB 976.

III.    Effect of Proposed Changes:

        SB 976 broadens the Capital Formation Act in Part X of ch. 288, F.S., to create the Florida
        Infrastructure Fund Partnership and the Florida Infrastructure Investment Trust as a means to
        attract as much as $700 million in private capital to finance large-scale infrastructure
        improvements in this state. The bill makes available $700 million in contingent tax credits,
        which are assigned to investors dollar-for-dollar of their principal equity investments. The tax
        credits may be used by investors only to recoup losses of such principal. The credits cannot be
        claimed prior to 12 years from the date of the investment, so the earliest, based on the bill’s
        effective date, would be on or after July 1, 2023.

        Section 1: Amends s. 288.9621, F.S., to modify the short title, Florida Capital Formation Act, in
        Part X of ch. 288, F.S.

        Section 2: Amends s. 288.9621, F.S., to broaden legislative intent on the need for more seed
        capital and early-stage venture capital to include infrastructure projects.

        Section 3: Amends s. 288.9623, F.S., to add several definitions relevant to the proposed Florida
        Infrastructure Fund Partnership. Key definitions are:
                Certificate means a contract between the trust and an investment partner to guarantee the
                partner’s investment in the partnership under which the investment partner, under certain
                conditions, may redeem such certificate for a tax credit.
                Commitment agreement means a contract between the partnership and an investment
                partner under which the partner commits to providing a specified amount of investment
                capital in exchange for an ownership interest in the partnership.
                Infrastructure project means a capital project in the state for a facility or other
                infrastructure need in the state, a county, or a municipality with respect to any of the

15
   Clean Watersheds Needs Survey 2008 Report to Congress.
16
   Various reports are available about one or all of these states’ programs. As a sample, see “Building a Regional Venture
Capital Industry with Contingent Tax Credits,” at
http://www.cdfa.net/cdfa/cdfaweb.nsf/fbaad5956b2928b086256efa005c5f78/d726ee6624cfb02c86257577007238da/$FILE/n
asvftaxcredits.pdf.; “Government Based Private Equity Programs,” at
http://www.cdfa.net/cdfa/cdfaweb.nsf/fbaad5956b2928b086256efa005c5f78/93e41838bbf61b5b8825781f005a8545/$FILE/N
eilson.CDFA%20Presentation_Jan%202011.pdf.; Utah’s Fund of Funds program, at http://www.utahfundoffunds.com/; and
Invest Iowa, at http://www.investiowa.com/icic/web.nsf/pages/fundoffunds.html. Last visited March 24, 2011.
BILL: SB 976                                                                                                         Page 6

                    following: water or wastewater system, communication system, power system,
                    transportation system, renewable energy system, ancillary or support system for any of
                    these types of projects, or other strategic infrastructure of the state, the county, or the
                    municipality.
                    Investment partner or partner means a person, other than the partnership, the fund, or the
                    trust, who purchases an ownership interest in the partnership or a transferee of such
                    interests.
                    Tax credit means a credit issued against the taxes specified in s. 288.9628(7)(c), F.S.

           Section 4: Creates s. 288.9627, F.S., the Florida Infrastructure Fund Partnership. This section
           details how the partnership is created, its purposes, and how it operates.

           Governance
           The partnership is organized and operated under ch. 620, F.S., as a private, for-profit, limited
           partnership or limited liability partnership. The partnership is not an instrumentality of the state.

           The FOF is identified as the general partner for the partnership, and is authorized to loan up to
           $750,000 to the partnership for use in paying initial organizational expenses and to solicit
           investment partners. The FOF also is responsible for managing the partnership’s business affairs,
           including, but not limited to:
                   Hiring one or more investment managers to assist with the management of the
                   partnership;17
                   Soliciting and negotiating the terms, contracting, and receipt of the investment capital;
                   Receiving investment returns, paying investment partners and approving investments;
                   and
                   Engaging in other activities necessary to operate the partnership.

           Infrastructure Investments
           The partnership is authorized to make direct investments in Florida-based infrastructure projects
           that foster economic development and meet an important infrastructure need of the state.
           Eligible infrastructure projects include: water or wastewater systems, communication system,
           power system, transportation system, renewable energy system, ancillary or support system for
           any of these types of projects, or other strategic infrastructure located within the state.

           Capital for these investments must be raised by the partnership through “commitment
           agreements” with investment partners approved by the FOF’s board. The bill provides for the
           issuance of certificates by Florida Infrastructure Investment Trust (described in Section 4 below)
           for future contingent tax credits that guarantee the return of investment capital from the
           partnership to its investment partners.

           These contingent tax credits will guarantee the principal investment to the partners, but not
           potential earnings.

           SB 976 requires that the total principal investment payable to the partnership and the total
           amount of contingent tax credits to be issued by the Department of Revenue (DOR) may not
17
     The Fund may only solicit investment managers that have maintained an office in Florida for at least 2 years.
BILL: SB 976                                                                                             Page 7

           exceed $700 million. However, if the partnership fails to obtain investment commitments
           totaling at least $100 million by December 1, 2012, then the partnership must cancel all
           agreements and return investment amounts back to the investment partners.

           Investment decision-making
           The partnership must evaluate infrastructure projects interested in receiving investments based
           on the following factors:
                   The written business plan for the project, including all expected revenue sources;
                   The likelihood of the project attracting operating capital through grants or from investors
                   or other lenders;
                   The management team for the proposed project;
                   The project's job creation potential in Florida;
                   The financial resources of the entity proposing the project;
                   The presence of reasonable safeguards to ensure the project provides a continuing benefit
                   for residents of the state; and
                   Other factors deemed by the partnership to be relevant to the likelihood of the success of
                   the project.

           Additionally, the partnership may only invest in infrastructure projects, which:
                  Fulfill an infrastructure need in the state;
                  Raise twice as much equity or debt capital from other sources as is invested by the
                  partnership; and
                  Have appropriate legal controls in place to ensure that no infrastructure project will be
                  fraudulently closed.

           The partnership may not invest more than 20 percent of its total funds available for investment in
           any single infrastructure project. The partnership is prohibited from investing in any
           infrastructure project authorized under the Florida Rail Enterprise Act, related to high-speed rail
           projects;18 with any financial institution or company identified in s. 215.472, F.S., that engages in
           commerce with Cuba; or with any “scrutinized company,” as that term is defined in s. 215.473,
           F.S., relating to companies that engage in commerce with Iran and Sudan.

           Provisions related to the Credit of the State
           SB 976 prohibits the partnership and the FOF from pledging the credit or taxing power of the
           state or any political subdivision of the state, nor are their obligations also debt to the state or
           other political subdivisions. Finally, the partnership and the FOF must pay their debts only from
           their own resources.

           Reporting Requirements
           The partnership must submit an annual report December 1 of each year to the Governor, the
           President of the Senate, and the Speaker of the House of Representatives. The annual report, at a
           minimum, must include:
                  An accounting of the amount of investment capital raised and disbursed by the
                  partnership.

18
     Sections 341.8201 – 341.842. F.S.
BILL: SB 976                                                                                                         Page 8

                 The progress of the partnership’s activities, including the progress of infrastructure
                 projects that have been provided direct investment under the program.
                 A description of the costs and benefits to the state resulting from the partnership’s
                 investments, including:
                     o A list of infrastructure projects;
                     o The costs and benefits of each project to the state;
                     o The number of businesses and associated industries affected;
                     o The number, types, and average annual wage of jobs created or retained; and
                     o The impact of the program on the state’s economy.
                 Independently audited financial statements, including statements that show receipts and
                 expenditures during the preceding fiscal year for the partnership’s operating costs.

        Section 5: Creates s. 288.9628, F.S., the Florida Infrastructure Investment Trust (trust), a state
        beneficiary public trust, to be governed by an independent board of trustees (board).

        Governance
        The board is comprised of the Chief Financial Officer; the Executive Director of the Office of
        Trade, Tourism, and Economic Development; and the Vice Chair of Enterprise Florida, Inc., or
        their respective designees. The bill allows an administrative officer to act on behalf of the Trust
        under the direction of the board. The board members and the administrative officer are
        prohibited from receiving compensation from, and having a financial interest in, any investment
        partner. They serve without compensation, but are entitled to reimbursement of their expenses.19

        Powers and duties of the trust
        SB 976 authorizes the trust to:
              Engage consultants and retain professional services;
              Issue tax certificates to the investment partners, redeemable for contingent tax credits;
              Sell the contingent tax credits;
              Expend funds and invest funds; and
              Enter into contracts, and bond or insure against loss.

        As mentioned above, the trust may issue certificates, redeemable against the contingent state tax
        credits, to partners that make equity investments in the partnership. A certificate issued to a
        partner guarantees the availability of tax credits equal to the principal investment specified in the
        partner’s commitment agreement with the partnership. Certificates issued by the trust may not
        exceed a total aggregate of $700 million of tax credits. Further, a certificate issued by the trust
        must have a specific calendar year maturity date designated by the trust of no earlier than 12
        years after the date of issuance. A partner’s certificate and related tax credits can be transferred
        to a new owner in whole or in part.

        SB 976 specifies that the provisions of ch. 517, F.S., dealing with regulation of securities, do not
        apply to the certificates and contingent tax credits transferred or sold under this program.


19
  The trust and the FOF may seek reimbursements for expenses by charging a fee for the issuance of certificates to
investment partners. The fee may be no more than .25 percent of the aggregate investment capital committed to the
partnership.
BILL: SB 976                                                                                         Page 9

      Notification and Election of Tax Credits
      If, on the maturity date of a certificate, a partner’s principal investment has suffered a “net
      capital loss,” the partnership must provide written notification of this circumstance to the partner.
      “Net capital loss” is defined to mean an amount equal to the difference between the total
      investment capital made by the investment partner to the partnership and the amount of the
      aggregate actual distributions received by the investment partner. The notification must include:
               An estimate of the fair-market value of the partnership's assets;
               The total capital investment of all partners;
               The total amount of distributions received by the partners; and
               The amount of the tax credit for which the partner is entitled to be issued.

      Upon receipt of notice from the partnership, each partner can elect to:
             Have the tax credits issued in its name;
             Authorize the trust to sell the tax credits on its behalf, with the proceeds of the sale paid
             to the partner; or
             Maintain its investment in the partnership.

      An affected partner has 30 days, after receiving notification, to provide written notification to the
      partnership and the trust which option it has chosen. Failing to provide a timely notice will result
      in the investment partner being deemed to have elected to maintain investment in the partnership.

      Issuance and Sale off Tax Credits
      In the event that a partner becomes eligible and elects to claim tax credits under the program, the
      bill provides that the trust will, on behalf of the partner, apply to DOR for the issuance of tax
      credits. The tax credits certified by DOR may not exceed the partner’s net capital loss. The
      partner must agree in writing to transfer its interest in the partnership to the fund before receiving
      tax credits.

      Alternatively, the trust may sell tax credits on behalf of a partner, in an amount no more than the
      lesser of the maximum amount of tax credits available under the terms of the certificate issued to
      the partner or the amount necessary to repay a partner’s net capital loss. Before receiving the
      proceeds from the trust's sale of tax credits, the partner must agree in writing to transfer its
      interest in the partnership to the fund.

      Within 30 days following receipt of a partner’s election or the trust's sale of the tax credits, the
      trust must notify the partnership and then apply to DOR for issuance of the contingent tax credits
      in the name of the partner or purchaser. The application must include the following information:
      the partnership’s certification of the amount of credits to be issued, identification of the
      applicable taxpayer, and the tax against which the credits can be applied. Within 30 days of the
      receipt of an application, DOR must issue tax credits to the partner or purchaser in the amount
      designated by the trust in the application. If the trust is unable to sell the partner's tax credits
      within 90 days, the bill provides the partner with the option to modify its election choice.

      As specified earlier, the amount of tax credits that may be claimed or applied against state taxes
      may not exceed $150 million in a state fiscal year. The tax credits issued by DOR can be used to
BILL: SB 976                                                                                       Page 10

      offset state sales, corporate, or premium insurance tax liability, or as refund of taxes paid; such
      credits must be applied or taken as a refund within 7 years after the credits are issued.

      The bill provides that ch. 517, F.S., dealing with regulation of securities, does not apply to the
      certificates and credits transferred or sold pursuant to the provisions of the bill.

      Section 6: Specifies an effective date of July 1, 2011.


IV.   Constitutional Issues:

      A.       Municipality/County Mandates Restrictions:

               None.

      B.       Public Records/Open Meetings Issues:

               None.

      C.       Trust Funds Restrictions:

               None.


V.    Fiscal Impact Statement:

      A.       Tax/Fee Issues:

               At its March 10, 2011 meeting, the Revenue Estimating Conference (REC) determined
               by consensus that SB 976 will have a recurring negative, but indeterminate, impact on
               both state and local government revenues, as annualized in the next four fiscal years.

               The REC noted in its written estimate report that, “It is not possible to determine what net
               operating capital losses could be 12 years out, therefore the Cap ($150 million annually)
               is assumed to be the maximum recurring amount.” Further, the REC noted that, “This bill
               exposes the state to contingent future tax credits ranging from $0 to $700 million,
               beginning in 2023 at the earliest.”

      B.       Private Sector Impact:

               Indeterminate, but likely positive for both businesses and residents of the areas where the
               infrastructure projects are constructed.

      C.       Government Sector Impact:

               Indeterminate. DOR may incur some costs associated with administratively handling the
               issuance and transference, where applicable, of the contingent tax credits.
 BILL: SB 976                                                                                                                         Page 11

 VI.    Technical Deficiencies:

        None.

VII.    Related Issues:

        None.

VIII.   Additional Information:

        A.       Committee Substitute – Statement of Substantial 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 - 2011                         COMMITTEE AMENDMENT
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                             Ì496966cÎ496966


                             LEGISLATIVE ACTION
                   Senate            .              House
                                     .
                                     .
                                     .
                                     .
                                     .




     The Committee on Commerce and Tourism (Gaetz) recommended the
     following:


1        Senate Substitute for Amendment (138788) (with title
2    amendment)
3
4
5        Delete everything after the enacting clause
6    and insert:
7        Section 1. Section 332.16, Florida Statutes, is created to
8    read:
9        332.16 Public-record exemptions.—
10       (1) DEFINITIONS.—As used in this section, the term:
11       (a) “Airport facilities” means airports, buildings,
12   structures, terminal buildings, parking garages and lots,

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                               Ì496966cÎ496966


13   hangars, land, warehouses, shops, hotels, other aviation
14   facilities of any kind or nature, or any other facility of any
15   kind or nature related to or connected with a public airport and
16   other aviation facility that a public airport is authorized by
17   law to construct, acquire, own, lease, or operate, together with
18   all fixtures, equipment, and property, real or personal,
19   tangible or intangible, necessary, appurtenant, or incidental
20   thereto.
21       (b) “Governing body” means the board or body in which the
22   general legislative powers of a public airport is vested.
23       (c) “Proprietor” means a self-employed individual,
24   proprietorship, corporation, partnership, limited partnership,
25   firm, enterprise, franchise, association, trust, or business
26   entity, whether fictitiously named or not, authorized to do or
27   doing business in this state, including its respective
28   authorized officer, employee, agent, or successor in interest,
29   which controls or owns the proprietary confidential business
30   information provided to a public airport.
31       (d) “Proprietary confidential business information” means
32   information that is owned or controlled by the proprietor
33   requesting confidentiality under this section; that is intended
34   to be and is treated by the proprietor as private in that the
35   disclosure of the information would cause harm to the business
36   operations of the proprietor; that has not been disclosed unless
37   disclosed pursuant to a statutory provision, an order of a court
38   or administrative body, or a private agreement providing that
39   the information may be released to the public; and that is
40   information concerning:
41       1. Business plans.

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                             Ì496966cÎ496966


42       2. Internal auditing controls and reports of internal
43   auditors.
44       3. Reports of external auditors for privately held
45   companies.
46       4. Client and customer lists.
47       5. Potentially patentable material.
48       6. Business transactions; however, business transactions do
49   not include those transactions between a proprietor and a public
50   airport.
51       7. Financial information of the proprietor.
52       (e) “Public airport” has the same meaning as provided in s.
53   330.27 and includes areas defined in s. 332.01(3).
54       (f) “Trade secrets” has the same meaning as in s. 688.002.
55       (2) PROPRIETARY CONFIDENTIAL BUSINESS INFORMATION.—
56   Proprietary confidential business information held by a public
57   airport is confidential and exempt from s. 119.07(1) and s.
58   24(a), Art. I of the State Constitution, until such information
59   is otherwise publicly available or is no longer treated by the
60   proprietor as proprietary confidential business information.
61       (3) TRADE SECRETS.—Trade secrets held by a public airport
62   are confidential and exempt from s. 119.07(1) and s. 24(a), Art.
63   I of the State Constitution.
64       (4) SALE, USE, DEVELOPMENT, OR LEASE OF AIRPORT
65   FACILITIES.—Any proposal or counterproposal exchanged between a
66   public airport and a nongovernmental entity relating to the
67   sale, use, development, or lease of airport facilities is exempt
68   from s. 119.07(1) and s. 24(a), Art. I of the State
69   Constitution. However, any such proposal or counterproposal
70   shall cease to be exempt upon approval by the governing body of

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                               Ì496966cÎ496966


71   a public airport. If no proposal or counterproposal is submitted
72   to the governing body for approval, such proposal or
73   counterproposal shall cease to be exempt 90 days after the
74   cessation of negotiations between the public airport and the
75   nongovernmental entity.
76       (5) LEGISLATIVE REVIEW.—This section is subject to the Open
77   Government Sunset Review Act in accordance with s. 119.15, and
78   shall stand repealed on October 2, 2016, unless reviewed and
79   saved from repeal through reenactment by the Legislature.
80       Section 2. (1) The Legislature finds that it is a public
81   necessity that trade secrets and proprietary confidential
82   business information, including business plans, internal
83   auditing controls and reports of internal auditors, reports of
84   external auditors for privately held companies, client and
85   customer lists, potentially patentable material, certain
86   business transactions, and financial information of the
87   proprietor be made confidential and exempt from s. 119.07(1),
88   Florida Statutes, and s. 24(a), Article I of the State
89   Constitution. Trade secrets and proprietary confidential
90   business information derive independent economic value, actual
91   or potential, from not being generally known to, and not being
92   readily ascertainable by, other persons who could obtain
93   economic value from its disclosure or use. An airport, in
94   performing its lawful duties and responsibilities, may need to
95   obtain from a proprietor trade secrets or proprietary
96   confidential business information. Without an exemption from
97   public-records requirements, trade secrets and proprietary
98   confidential business information held by an airport become a
99   public record and must be divulged upon request. Divulging the

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      Florida Senate - 2011                         COMMITTEE AMENDMENT
      Bill No. SB 994




                              Ì496966cÎ496966


100   trade secret or proprietary confidential business information
101   would destroy the value of that property to the proprietor,
102   causing a financial loss not only to the proprietor, but also to
103   the airport and to the state and local governments due to a loss
104   of tax revenue and employment opportunities for residents.
105   Release of that information would give business competitors an
106   unfair advantage and would injure the affected entity in the
107   marketplace. Thus, the Legislature finds that it is a public
108   necessity that trade secrets and proprietary confidential
109   business information held by a public airport be made
110   confidential and exempt from public-records requirements.
111       (2) The Legislature also finds that it is a public
112   necessity that any proposal or counterproposal exchanged between
113   a nongovernmental entity and any public airport listed in s.
114   330.27, Florida Statutes, which includes areas defined in s.
115   332.01(3), Florida Statutes, relating to the sale, use, or lease
116   of land or airport facilities, be made exempt from public-
117   records requirements until approved by the governing body of the
118   airport. Proposals and counterproposals submitted to an airport
119   contain sensitive and confidential business and financial
120   information. Competing entities can gain access to such
121   proposals, and, in some instances, the affected nongovernmental
122   entity has abandoned its contractual efforts with the airport,
123   to the airport’s financial detriment. Confidential business and
124   financial records submitted to an airport for purposes of the
125   sale, use, or lease of land or of airport facilities contain
126   sensitive information, the release of which would give
127   competitors an unfair economic advantage. Finally, such
128   exemption is necessary in order for Florida airports to more

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      Florida Senate - 2011                           COMMITTEE AMENDMENT
      Bill No. SB 994




                                Ì496966cÎ496966


129   effectively and efficiently negotiate contracts for the sale,
130   use, or lease of airport facilities.
131       Section 3. This act shall take effect July 1, 2011.
132
133   ================= T I T L E    A M E N D M E N T ================
134   And the title is amended as follows:
135       Delete everything before the enacting clause
136   and insert:
137                           A bill to be entitled
138       An act relating to public records; creating s. 332.16,
139       F.S.; providing definitions; providing an exemption
140       from public-records requirements for proprietary
141       confidential business information and trade secrets
142       held by a public airport and for any proposal or
143       counterproposal exchanged between a public airport and
144       a nongovernmental entity relating to the sale, use,
145       development, or lease of airport facilities; providing
146       for expiration of the exemptions; providing for future
147       legislative review and repeal of the exemptions under
148       the Open Government Sunset Review Act; providing a
149       finding of public necessity; providing an effective
150       date.




                                    Page 6 of 6
      4/4/2011 12:00:22 PM                                    CM.CM.03733
                                                      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 Commerce and Tourism Committee

BILL:           SB 994
INTRODUCER:     Senator Latvala
SUBJECT:        Public Records/Airports
DATE:           March 29, 2011                   REVISED:


           ANALYST                    STAFF DIRECTOR                 REFERENCE                                 ACTION
1. Wolfgang                         Yeatman                               CA              Fav/1 amendment
2. Pugh                             Cooper                                CM              Pre-meeting
3.                                                                        GO
4.
5.
6.



                   Please see Section VIII. for Additional Information:
              A. COMMITTEE SUBSTITUTE.....                       Statement of Substantial Changes
              B. AMENDMENTS........................              Technical amendments were recommended
                                                            x    Amendments were recommended
                                                                 Significant amendments were recommended


  I.    Summary:

        Current law provides several public records exemptions for proprietary confidential business
        information held by various entities, and for contract proposals exchanged between public and
        private entities for the use of public infrastructure. However, the statutes do not provide similar
        exemptions for public airports engaged in business transactions with private companies.

        SB 994 creates a public records exemption for proprietary confidential business information
        submitted to or held by a public airport. The exemption expires when the confidential and
        exempt information is no longer considered to be proprietary confidential business information
        by the proprietor.

        The bill also creates a public records exemption for a proposal or counterproposal exchanged
        between a public airport and a nongovernmental entity relating to the sale, use, development, or
        lease of airport land or airport facilities.

        SB 994 provides a statement of public necessity as required by the State Constitution, and
        provides definitions for terms used in the proposed statutes.
BILL: SB 994                                                                                                        Page 2

          Finally, SB 994 provides for repeal of the exemptions on October 2, 2016, unless reviewed and
          saved from repeal by the Legislature.

          Pursuant to Article I, s. 24(c) of the State Constitution, passage of SB 994 requires a two-thirds
          vote in each chamber of the members present and voting for final passage of a newly created
          public record or public meeting exemption.

          SB 994 creates s. 332.16, F.S., and an unnumbered section of chapter law related to the statement
          of necessity for the proposed public records exemption.

    II.   Present Situation:

          Public Records Law
          Florida has a long history of providing public access to the records of governmental and other
          public entities. The Legislature enacted its first law affording access to public records in 1892. In
          1992, Florida voters approved an amendment to the State Constitution which raised the statutory
          right of access to public records to a constitutional level.

          Article I, s. 24(a) of the State Constitution sets forth the state’s public policy regarding access to
          government records. The section guarantees every person a right to inspect or copy any public
          record of the legislative, executive, and judicial branches of government.

          Section 119.011(12), F.S., defines the term “public records” to include all documents, papers,
          letters, maps, books, tapes, photographs, films, sound recordings, data processing software, or
          other material, regardless of the physical form, characteristics, or means of transmission, made or
          received pursuant to law or ordinance or in connection with the transaction of official business
          by any agency. The Florida Supreme Court has interpreted this definition to encompass all
          materials made or received by an agency in connection with official business which are
          “intended to perpetuate, communicate, or formalize knowledge.”1

          The Legislature, however, may provide by general law an exemption of public records from the
          requirements of Article I, s. 24(a) of the State Constitution. The general law must state with
          specificity the public necessity justifying the exemption (the so-called “public necessity
          statement”) and must be no broader than necessary to accomplish its purpose.2 A bill enacting an
          exemption3 may not contain other substantive provisions although it may contain multiple
          exemptions relating to one subject.4

          There is a difference between records that the Legislature exempts from public inspection and
          those that the Legislature makes confidential and exempt from public inspection. If a record is
          made confidential with no provision for its release so that its confidential status will be
          maintained, such record may not be released by an agency to anyone other than the person or


1
  Shevin v. Byron, Harless, Shafer, Reid, and Assocs., Inc., 379 So. 2d 633, 640 (Fla. 1980).
2
  Section 24(c), Art. I of the State Constitution.
3
  Section 119.15(4)(b), F.S., provides that an existing exemption may be considered a new exemption if the exemption is
expanded to cover additional records.
4
  Section 24(c), Art. I of the State Constitution.
BILL: SB 994                                                                                                             Page 3

         entities designated in the statute.5 If a record is simply exempt from mandatory disclosure
         requirements, an agency is not prohibited from disclosing the record in all circumstances.6

         Public policy regarding access to government records is addressed further in the Florida Statutes.
         Section 119.07(1), F.S., guarantees every person a right to inspect and copy any state, county, or
         municipal record. Furthermore, the Open Government Sunset Review Act7 provides that a public
         record or public meeting exemption may be created or maintained only if it serves an identifiable
         public purpose. In addition, it may be no broader than is necessary to meet one of the following
         purposes:
                 Allows the state or its political subdivisions to effectively and efficiently administer a
                 governmental program, which administration would be significantly impaired without the
                 exemption.
                 Protects sensitive personal information that, if released, would be defamatory or would
                 jeopardize an individual’s safety; however, only the identity of an individual may be
                 exempted under this provision.
                 Protects trade or business secrets.

         Proprietary Confidential Business Information
         Current law provides several public record exemptions for proprietary confidential business
         information, such as that held by economic development agencies and utilities.8 However, it does
         not provide a public record exemption for proprietary confidential business information held by a
         public airport.

         Open Government Sunset Review Act
         The Open Government Sunset Review Act established in s. 119.15, F.S., provides a review and
         repeal process for public records exemptions. In the fifth year after enactment of a new
         exemption or in the fifth year after substantial amendment of an existing exemption, the
         exemption is repealed on October 2, unless reenacted by the Legislature. Each year, by June 1,
         the Division of Statutory Revision of the Office of Legislative Services is required to certify to
         the President of the Senate and the Speaker of the House of Representatives the language and
         statutory citation of each exemption scheduled for repeal the following year.

         Public Airports in Florida
         Section 330.27(6), F.S., defines “public airport” as either a publicly or privately owned airport
         that is open for use by the public. Florida has 21 commercial airports9 (meaning they offer


5
  Op. Att’y Gen. Fla. 85-62 (1985).
6
  Williams v. City of Minneola, 575 So. 2d 683, 687 (Fla. 5th DCA), review denied, 589 So. 2d 289 (Fla. 1991).
7
  Section 119.15, F.S.
8
  Public record exemptions for proprietary confidential business information are provided as it relates to the following:
electric utility interlocal agreements (s. 163.01, F.S.); communications services tax (s. 202.195, F.S.); alternative investments
for state funds (s. 215.44, F.S.); economic development agencies (s. 288.075, F.S.); Institute for Commercialization of Public
Research and the Opportunity Fund (s. 288.9626, F.S.); telephone companies (s. 364.183, F.S.); emergency communications
number E911 system (s. 365.174, F.S.); public utilities (s. 366.093, F.S.); natural gas transmission companies (s. 368.108,
F.S.); Sunshine State One-Call of Florida, Inc. (s. 556.113, F.S.); tobacco companies (s. 569.215, F.S.); prison work program
corporation records (s. 946.517, F.S.); and H. Lee Moffitt Cancer Center and Research Institute (s. 1004.43, F.S.).
9
  A map showing the location of these 21 airports is available at:
http://www.dot.state.fl.us/aviation/pdfs/Welcome%20to%20Fl%20Aviation112010.pdf on page 10.
BILL: SB 994                                                                                                         Page 4

        commercial passenger airline service) and 107 general aviation airports,10 which include
        municipal airports and private air fields that offer flights other than military and scheduled airline
        and regular cargo flights.

        Based on a 2010 report11 prepared by the Florida Department of Transportation’s Office of
        Aviation, airport operations account for at least 1 million jobs and annual payroll of nearly $31
        billion, and generate an estimated $97 billion in economic activity. For example, air cargo
        operations generate an estimated $6.6 billion on economic impact, and accounts for about one-
        third Florida’s international trade.

III.    Effect of Proposed Changes:

        SB 994 creates two public records exemption related to public airports: one related to proprietary
        confidential business information submitted to or held by a public airport, and the other related to
        proposals or counterproposals exchanged between a public airport and a nongovernmental entity
        relating to the sale, use, development, or lease of airport land or airport facilities.

        Section 1: Creates s. 332.16, F.S., to create an exemption for proprietary confidential business
        information submitted to or held by a public airport. The exemption expires when the
        confidential and exempt information is no longer considered to be proprietary confidential
        business information by the proprietor.

        SB 994 creates definitions for the terms “airport facilities,” “governing body,” “proprietor,” and
        “public airport.” The key definition is “proprietary confidential business information,” which
        means information that has been designated as confidential by the proprietor and includes:
               Business plans;
               Internal auditing controls and reports of internal auditors;
               Reports of external auditors for privately held companies;
               Trade secrets as defined in the Uniform Trade Secrets Act;12
               Client and customer lists;
               Potentially patentable material;
               Business transactions; or
               Financial information of the proprietor or projections of financial results for the
               proprietor or the airport facilities project for which the information is provided.

        The bill also creates a public records exemption for a proposal or counterproposal exchanged
        between a public airport and a nongovernmental entity relating to the sale, use, development, or
        lease of airport land or airport facilities. The public record exemption expires 10 days after the
        proposal or counterproposal is approved by the governing body of a public airport.



10
   Ibid, pages 8-9.
11
   Ibid, page 6.
12
   Section 688.002(4), F.S., defines “trade secret” to mean information, including a formula, pattern, compilation, program,
device, method, technique, or process that: derives independent economic value, actual or potential, from not being generally
known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its
disclosure or use; and is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.
BILL: SB 994                                                                                       Page 5

      SB 944 provides that if a proposal or counterproposal is not submitted to the governing body for
      approval, then the public records exemption for the proposal or counterproposal expires 90 days
      after the cessation of negotiations between the public airport and the nongovernmental entity.

      Additionally, the bill provides for repeal of the exemptions on October 2, 2016, unless reviewed
      and saved from repeal by the Legislature.

      Section 2: Provides in an undesignated section of chapter law the constitutionally required
      statement of public necessity. However, the public necessity statement only provides the
      justification for creating the public record exemption for proprietary confidential business
      information.

      Essentially, the bill states that divulging the proprietary confidential business information
      destroys the value of that property to the proprietor, causing a financial loss not only to the
      proprietor, but also to the airport and to the state and local governments due to a loss of tax
      revenue and employment opportunities for residents. Release of that information could give
      business competitors an unfair advantage and would injure the affected entity in the marketplace.

      Section 3: Provides an effective date of July 1, 2011.

IV.   Constitutional Issues:

      A.       Municipality/County Mandates Restrictions:

               None.

      B.       Public Records/Open Meetings Issues:

                Vote Requirement
               Article I, s. 24(c) of the State Constitution, requires a two-thirds vote of the members
               present and voting for final passage of a newly created public record or public meeting
               exemption. Since SB 944 creates new public record exemptions, it requires a two-thirds
               vote in each chamber for final passage.

               Public Necessity Statement
               Article I, s. 24(c) of the State Constitution, requires a public necessity statement for a
               newly created or expanded public record or public meeting exemption. SB 994 creates
               two new public records exemptions. However, the public necessity statement is deficient
               in that it only provides justification for the public record exemption for proprietary
               confidential business information. The public necessity statement should be amended to
               include the justification for protecting proposals or counterproposals exchanged between
               a public airport and a nongovernmental entity relating to the sale, use, development, or
               lease of airport land or airport facilities.

               Breadth of Exemption
               Article I, s. 24(c) of the State Constitution, requires that an exemption be drafted as
               narrowly as possible. The exemption in SB 994, as drafted, could raise concerns whether
BILL: SB 994                                                                                              Page 6

                    it is narrowly drawn regarding its breadth when compared with another similar exemption
                    for seaports.

                    Current law provides a public record exemption for a proposal or counterproposal
                    exchanged between a deepwater port and a nongovernmental entity.13 However, that
                    exemption expires 30 days before any such proposal or counterproposal is considered for
                    approval by the governing body of the deepwater port.

                    The exemption provided by SB 994 requires that the confidentiality be maintained for a
                    period of 10 days after approval by the governing body of the public airport. The need to
                    maintain such confidentiality after a proposal or counterproposal is approved by the
                    governing body at a public meeting is unclear. As such, the proposed exemption could be
                    construed as overly broad.

           C.       Trust Funds Restrictions:

                    None.

V.         Fiscal Impact Statement:

           A.       Tax/Fee Issues:

                    None.

           B.       Private Sector Impact:

                    Indeterminate.

           C.       Government Sector Impact:

                    None.

VI.        Technical Deficiencies:

           Line 62 of SB 994 provides that certain proposals and counterproposals are “confidential and
           exempt” from public records requirements; however, line 44 of the bill refers to the same
           proposals and counterproposals as “exempt.” The bill should be amended to clarify that the
           proposals and counterproposals are confidential and exempt from public records requirements,
           per the sponsor’s intent.

           In addition, the bill defines “airport facilities” to mean airports, buildings, structures, terminal
           buildings, parking garages and lots, hangars, land, warehouses, shops, hotels, other aviation
           facilities of any kind or nature, or any other facility of any kind or nature related to or connected
           with a public airport and other aviation facility that a public airport is authorized by law to
           construct, acquire, own, lease, or operate, together with all fixtures, equipment, and property,
           real or personal, tangible or intangible, necessary, appurtenant, or incidental thereto. The bill

13
     Section 315.18, F.S.
 BILL: SB 994                                                                                                                         Page 7

        provides that the public record exemption for a proposal or counterproposal applies to the sale,
        use, development, or lease of airport land or airport facilities. Including a reference to land in the
        definition of “airport facilities” appears to be redundant.

VII.    Related Issues:

        The term “business transactions” could be broadly construed to include even the contracts and
        other transactions between the proprietor/private tenant and the public airport. In addition, the
        public necessity for protecting financial information associated with an airport facilities project is
        unclear, in the case where such projects were paid for with public tax dollars.

        An amendment is expected to be filed to clarify this issue and the technical issues identified
        above.

VIII.   Additional Information:

        A.       Committee Substitute – Statement of Substantial Changes:
                 (Summarizing differences between the Committee Substitute and the prior version of the bill.)

                 None.

        B.       Amendments:

                 Barcode 138788 by Community Affairs Committee on March 14, 2011:
                 This amendment narrows the categories of public records subject to exemption from
                 public disclosure.


         This Senate Bill Analysis does not reflect the intent or official position of the bill’s introducer or the Florida Senate.
     Florida Senate - 2011                         COMMITTEE AMENDMENT
     Bill No. SB 994




                              Ì138788hÎ138788


                              LEGISLATIVE ACTION
                   Senate             .             House
                  Comm: FAV           .
              03/14/2011              .
                                      .
                                      .
                                      .




     The Committee on Community Affairs (Ring) recommended the
     following:


1        Senate Amendment
2
3        Delete line 45
4    and insert:
5
6    proprietor; is intended to be and is treated by that proprietor
7    as private, and the disclosure of which would cause harm to the
8    business operations of the proprietor; has not been
9    intentionally disclosed by the proprietor unless pursuant to a
10   private agreement that provides that the information will not be
11   released to the public except as required by law or legal
12   process; and includes:

                                 Page 1 of 1
     3/14/2011 10:08:36 AM                                  578-02371-11
    Florida Senate - 2011                         COMMITTEE AMENDMENT
    Bill No. SB 1548




                            Ì504128$Î504128


                            LEGISLATIVE ACTION
                  Senate            .              House
                                    .
                                    .
                                    .
                                    .
                                    .




    The Committee on Commerce and Tourism (Lynn) recommended the
    following:


1       Senate Amendment
2
3       Delete line 185
4   and insert:
5       c. Items included in the definition of sales price.




                               Page 1 of 1
    4/4/2011 10:44:43 AM                                   CM.CM.03665
    Florida Senate - 2011                         COMMITTEE AMENDMENT
    Bill No. SB 1548




                            Ì122442wÎ122442


                            LEGISLATIVE ACTION
                  Senate            .              House
                                    .
                                    .
                                    .
                                    .
                                    .




    The Committee on Commerce and Tourism (Lynn) recommended the
    following:


1       Senate Amendment
2
3       Delete lines 684 - 686
4   and insert:
5       (27) “Agricultural commodity” means horticultural,
6   aquacultural, poultry and farm products, and livestock and
7   livestock products.




                               Page 1 of 1
    4/4/2011 10:46:44 AM                                   CM.CM.03707
    Florida Senate - 2011                         COMMITTEE AMENDMENT
    Bill No. SB 1548




                            Ì423136ÈÎ423136



                            LEGISLATIVE ACTION
                  Senate            .              House
                                    .
                                    .
                                    .
                                    .
                                    .




    The Committee on Commerce and Tourism (Lynn) recommended the
    following:


1       Senate Amendment
2
3       Delete line 1041
4   and insert:
5   sponsored by a state college, state university, or community
6   college




                               Page 1 of 1
    4/4/2011 10:47:56 AM                                   CM.CM.03668
    Florida Senate - 2011                         COMMITTEE AMENDMENT
    Bill No. SB 1548




                            Ì336710xÎ336710


                            LEGISLATIVE ACTION
                 Senate             .              House
                                    .
                                    .
                                    .
                                    .
                                    .




    The Committee on Commerce and Tourism (Lynn) recommended the
    following:


1       Senate Amendment
2
3       Between lines 1810 and 1811
4   insert:
5       3. As used in this paragraph, the term "delivered
6   electronically" means delivered to the purchaser by means other
7   than tangible storage media.




                               Page 1 of 1
    4/4/2011 10:49:10 AM                                    CM.CM.03671
    Florida Senate - 2011                         COMMITTEE AMENDMENT
    Bill No. SB 1548




                            Ì951792@Î951792


                            LEGISLATIVE ACTION
                  Senate            .              House
                                    .
                                    .
                                    .
                                    .
                                    .




    The Committee on Commerce and Tourism (Lynn) recommended the
    following:


1       Senate Amendment
2
3       Delete line 2859
4   and insert:
5   chapter 459, chapter 460, chapter 461, chapter 466, or chapter
6   474. The term




                               Page 1 of 1
    4/4/2011 10:50:21 AM                                   CM.CM.03677
     Florida Senate - 2011                         COMMITTEE AMENDMENT
     Bill No. SB 1548




                             Ì499264DÎ499264


                             LEGISLATIVE ACTION
                   Senate            .              House
                                     .
                                     .
                                     .
                                     .
                                     .




     The Committee on Commerce and Tourism (Lynn) recommended the
     following:


1        Senate Amendment (with title amendment)
2
3        Delete lines 3134 - 3252
4    and insert:
5        (1) Notwithstanding any other provision of law and for the
6    purpose of compensating persons granting licenses for and the
7    lessors of real and personal property taxed hereunder, for the
8    purpose of compensating dealers in tangible personal property,
9    for the purpose of compensating dealers providing communication
10   services and taxable services, for the purpose of compensating
11   owners of places where admissions are collected, and for the
12   purpose of compensating remitters of any taxes or fees reported

                                Page 1 of 8
     4/4/2011 10:54:57 AM                                   CM.CM.03681
     Florida Senate - 2011                          COMMITTEE AMENDMENT
     Bill No. SB 1548




                             Ì499264DÎ499264


13   on the same documents utilized for the sales and use tax, as
14   compensation for the keeping of prescribed records, filing
15   timely tax returns, and the proper accounting and remitting of
16   taxes by them, such seller, person, lessor, dealer, owner, or
17   and remitter shall be allowed a collection allowance based on a
18   percentage of tax remitted for a reporting period. The rate of
19   compensation is:
20       1. 0.75 percent of the first $6,250 of tax remitted,
21       2. 0.375 percent of the tax remitted exceeding $6,250 and
22   less than or equal to $62,500, and
23       3. 0.1875 percent of the tax remitted exceeding $62,500.
24       (a) The amount of collection allowance for each seller,
25   person, lessor, dealer, owner, or remitter is limited based on
26   the amount of sales and use tax remitted in the twelve month
27   period ending June 30 of the previous calendar year. No
28   collection allowance will be allowed on the total tax remitted
29   by any seller, person, lessor, dealer, owner, or remitter in any
30   month in excess of:
31       1. $750,000, if the total amount remitted by all dealers in
32   the previous year was equal to or less than $1,000,000,000.00;
33       2. $1,000,000, if the total amount remitted by all dealers
34   in the previous year was greater than $1,000,000,000.00 but
35   equal to or less than $2,500,000,000.00;
36       3. $3,000,000.00, if the total amount remitted by all
37   dealers in the previous year was greater than $2,500,000,000.00
38   but equal to or less than $5,000,000,000.00;
39       4. $5,000,000.00, if the total amount remitted by all
40   dealers in the previous year was greater than $5,000,000,000.00
41   but equal to or less than $7,500,000,000.00;

                                Page 2 of 8
     4/4/2011 10:54:57 AM                                   CM.CM.03681
     Florida Senate - 2011                         COMMITTEE AMENDMENT
     Bill No. SB 1548




                             Ì499264DÎ499264


42       5. $7,000,000.00, if the total amount remitted by all
43   dealers in the previous year was greater than $7,500,000,000.00
44   but equal to or less than $10,000,000,000.00; or
45       6. $10,000,000.00, if the total amount remitted by all
46   dealers in the previous year was greater than $10,000,000.00.
47   (except dealers who make mail order sales) shall be allowed 2.5
48   percent of the amount of the tax due and accounted for and
49   remitted to the department, in the form of a deduction in
50   submitting his or her report and paying the amount due by him or
51   her; the department shall allow such deduction of 2.5 percent of
52   the amount of the tax to the person paying the same for
53   remitting the tax and making of tax returns in the manner herein
54   provided, for paying the amount due to be paid by him or her,
55   and as further compensation to dealers in tangible personal
56   property for the keeping of prescribed records and for
57   collection of taxes and remitting the same. However, if the
58   amount of the tax due and remitted to the department for the
59   reporting period exceeds $1,200, no allowance shall be allowed
60   for all amounts in excess of $1,200. The executive director of
61   the department is authorized to negotiate a collection
62   allowance, pursuant to rules promulgated by the department, with
63   a dealer who makes mail order sales. The rules of the department
64   shall provide guidelines for establishing the collection
65   allowance based upon the dealer’s estimated costs of collecting
66   the tax, the volume and value of the dealer’s mail order sales
67   to purchasers in this state, and the administrative and legal
68   costs and likelihood of achieving collection of the tax absent
69   the cooperation of the dealer. However, in no event shall the
70   collection allowance negotiated by the executive director exceed

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71   10 percent of the tax remitted for a reporting period.
72       (b)(a) The Department of Revenue may deny the collection
73   allowance if a taxpayer files an incomplete return or if the
74   required tax return or tax is delinquent at the time of payment.
75       1. An “incomplete return” is, for purposes of this chapter,
76   a return that which is lacking such uniformity, completeness,
77   and arrangement that the physical handling, verification, review
78   of the return, or determination of other taxes and fees reported
79   on the return may not be readily accomplished.
80       2. The department shall adopt rules requiring such
81   information as it may deem necessary to ensure that the tax
82   levied hereunder is properly collected, reviewed, compiled,
83   reported, and enforced, including, but not limited to: the
84   amount of gross sales; the amount of taxable sales; the amount
85   of tax collected or due; the amount of lawful refunds,
86   deductions, or credits claimed; the amount claimed as the
87   dealer’s collection allowance; the amount of penalty and
88   interest; the amount due with the return; and such other
89   information as the Department of Revenue may specify. The
90   department shall require that transient rentals and agricultural
91   equipment transactions be separately shown. Sales made through
92   vending machines as defined in s. 212.0515 must be separately
93   shown on the return. Sales made through coin-operated amusement
94   machines as defined by s. 212.02 and the number of machines
95   operated must be separately shown on the return or on a form
96   prescribed by the department. If a separate form is required,
97   the same penalties for late filing, incomplete filing, or
98   failure to file as provided for the sales tax return shall apply
99   to said form.

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100       (c)(b) The collection allowance and other credits or
101   deductions provided in this chapter shall be applied
102   proportionally to any taxes or fees reported on the same
103   documents used for the sales and use tax.
104       (d)(c)1. A dealer entitled to the collection allowance
105   provided in this section may elect to forego the collection
106   allowance and direct that said amount be transferred into the
107   Educational Enhancement Trust Fund. Such an election must be
108   made with the timely filing of a return and may not be rescinded
109   once made. If a dealer who makes such an election files a
110   delinquent return, underpays the tax, or files an incomplete
111   return, the amount transferred into the Educational Enhancement
112   Trust Fund shall be the amount of the collection allowance
113   remaining after resolution of liability for all of the tax,
114   interest, and penalty due on that return or underpayment of tax.
115   The Department of Education shall distribute the remaining
116   amount from the trust fund to the school districts that have
117   adopted resolutions stating that those funds will be used to
118   ensure that up-to-date technology is purchased for the
119   classrooms in the district and that teachers are trained in the
120   use of that technology. Revenues collected in districts that do
121   not adopt such a resolution shall be equally distributed to
122   districts that have adopted such resolutions.
123       2. This paragraph applies to all taxes, surtaxes, and any
124   local option taxes administered under this chapter and remitted
125   directly to the department. This paragraph does not apply to any
126   locally imposed and self-administered convention development
127   tax, tourist development tax, or tourist impact tax administered
128   under this chapter.

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129       3. Revenues from the dealer-collection allowances shall be
130   transferred quarterly from the General Revenue Fund to the
131   Educational Enhancement Trust Fund. The Department of Revenue
132   shall provide to the Department of Education quarterly
133   information about such revenues by county to which the
134   collection allowance was attributed.
135
136   Notwithstanding any provision of chapter 120 to the contrary,
137   the Department of Revenue may adopt rules to carry out the
138   amendment made by chapter 2006-52, Laws of Florida, to this
139   section.
140       (e) Notwithstanding paragraph (a), a small remote seller
141   may elect to receive a collection allowance of 20 percent of the
142   tax to be remitted to the state, not to exceed compensation of
143   $85.00 in any month in lieu of compensation provided in
144   subparagraph (b). Such election shall be effective for a six-
145   month period beginning with the first month that such seller
146   collects Florida tax. After six months, the collection allowance
147   shall be those rates established in subsection (b). The
148   increased amount of collection allowance by this paragraph shall
149   be available to a small remote seller which begins collecting
150   tax for the state within the first 12 months following the date
151   of registration.
152       1. “Small remote seller” means a new remote seller which
153   has gross national remote sales of no more than $5,000,000.00
154   and would not otherwise be required to register in this state.
155       2. “New remote seller” means a remote seller who registers
156   under the agreement, as provided in s. 213.2567, and who was not
157   previously required to collect sales or use tax. A seller merely

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158   reincorporating, changing its name, or having a change in
159   ownership or any other similar change in its business structure
160   or operation is not a new remote seller.
161       3. “Remote seller” means a seller not that would not be
162   registered in this state but for the ability of this state to
163   require the seller to collect sales or use tax under federal
164   authority.
165       (f) If sales and use tax collection from remote sellers is
166   not greater than 20 percent of the amount determined by the
167   Revenue Estimating Conference of potential collections by July
168   1, 2014, then the collection allowance shall be reduced to 2.5
169   percent of tax collected, not to exceed $30.
170       (g) Notwithstanding paragraphs (a) and (b), a Model 1
171   seller, as defined in s. 213.256 is not entitled to the
172   collection allowance described in paragraphs (a) and (b).
173       (h)1. In addition to any collection allowance that may be
174   provided under this subsection, the department may provide the
175   monetary allowances required to be provided by the state to
176   certified service providers and voluntary sellers pursuant to
177   Article VI of the Streamlined Sales and Use Tax Agreement, as
178   amended.
179       2. Such monetary allowances must be in the form of
180   collection allowances that certified service providers or
181   voluntary sellers are permitted to retain from the tax revenues
182   collected on remote sales to be remitted to the state pursuant
183   to this chapter.
184
185   ================= T I T L E    A M E N D M E N T ================
186   And the title is amended as follows:

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187       Between lines 79 and 80
188   insert:
189       authorizing collection allowances; setting
190       requirements for a collection allowance to be allowed;
191       authorizing collection allowances for certain remote
192       sellers; providing for a reduction;




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                             Ì162128&Î162128


                             LEGISLATIVE ACTION
                   Senate            .              House
                                     .
                                     .
                                     .
                                     .
                                     .




     The Committee on Commerce and Tourism (Lynn) recommended the
     following:


1        Senate Amendment (with title amendment)
2
3        Delete line 3845
4    and insert:
5    distributed accordingly. Beginning January 1, 2012, the amount
6    to be transferred pursuant to this subparagraph to the Local
7    Government Half-cent Sales Tax Trust Fund shall be reduced each
8    fiscal year by an amount determined by the Revenue Estimating
9    Conference for implementation of the Streamlined Sales and Use
10   Tax Agreement in this state and that amount shall remain with
11   the General Revenue Fund. The Revenue Estimating Conference
12   shall determine the impact of implementation of the Streamlined

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13   Sales and Use Tax Agreement by October 1, 2011.
14
15   ================= T I T L E    A M E N D M E N T ================
16   And the title is amended as follows:
17       Delete line 98
18   and insert:
19       order sales; providing for reduction of the Local
20       Government Half-cent Sales Tax Clearing Trust Fund
21       beginning in 2012; creating s. 213.052, F.S.;
22       requiring the




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                                                        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 Commerce and Tourism Committee

BILL:             SB 1548
INTRODUCER:       Senator Lynn
SUBJECT:          Streamlined Sales and Use Tax Agreement
DATE:             April 4, 2011                    REVISED:


           ANALYST                      STAFF DIRECTOR                 REFERENCE                                 ACTION
1. Hrdlicka                           Cooper                                CM              Pre-meeting
2.                                                                          BC
3.
4.
5.
6.



    I.    Summary:

          SB 1548 implements the requirements of the Streamlined Sales and Use Tax Agreement by
          making substantial changes to Florida’s sales and use tax laws in chs. 212 and 213, F.S. Such
          changes are meant to simplify Florida’s sales and use tax system and qualify the state for
          participation in the Sales and Use Tax Agreement, thereby making it easier for out-of-state
          businesses to voluntarily collect and remit taxes to Florida.

          This bill amends the following sections of Florida Statutes: 212.02, 212.03, 212.0306, 212.031,
          212.04, 212.05, 212.0506, 212.054, 212.055, 212.06, 212.07, 212.08, 212.12, 212.15, 212.17,
          212.18, 212.20, 213.256, 11.45, 196.012, 202.18, 203.01, 212.052, 212.081, 212.13, 218.245,
          218.65, 288.1045, 288.11621, 288.1169, 551.102, and 790.0655.

          This bill creates the following sections of Florida Statutes: 212.094, 213.052, 213.0521, 213.215,
          213.2562, and 213.2567.

          This bill repeals s. 212.0596, F.S.

    II.   Present Situation:

          Because Florida has no personal state income tax, the state is primarily dependent on
          consumption-based taxes for its general revenue. Sales tax collections make up over 70% of
          general revenue.1 Forty-five states and the District of Columbia impose sales and use taxes.2

1
 See Florida Revenue Estimating Conference, 2011 Florida Tax Handbook, available at
http://edr.state.fl.us/Content/revenues/reports/tax-handbook/taxhandbook2011.pdf (last visited 3/31/2011).
BILL: SB 1548                                                                                                       Page 2

        States that do not have a personal income tax – Alaska, Florida, Nevada, New Hampshire, South
        Dakota, Tennessee, Texas, Washington, and Wyoming – rely most heavily on sales tax
        collections.

        Florida Sales and Use Tax
        Chapter 212, F.S., contains the state’s statutory provisions authorizing the levying and collection
        of Florida’s sales and use tax, as well as the exemptions and credits applicable to certain items or
        uses under specified circumstances. A 6 percent sales and use tax is levied on most tangible
        personal property, admissions, storage, transient rentals, commercial rentals, motor vehicles, and
        a limited number of services.3 The statutes currently provide more than 200 different
        exemptions.4

        A sales tax of 6 percent is levied on the sales prices of tangible personal property sold at retail in
        Florida.5 Sales tax is added to the price of the taxable goods or service and collected from the
        purchaser at the time of sale.

        A use tax of 6 percent is levied on the cost prices of tangible personal property when it is used,
        consumed, distributed, or stored, rather than sold, in Florida.6 This is levied when sales tax was
        not paid at the time of purchase. For example, use tax is owed when a person buys:7
               A taxable item in Florida and doesn’t pay sales tax;
               An item tax-exempt intending to resell it, and then the item is used in a business or for
               personal use; or
               A taxable item outside Florida and brings or has it delivered into the state within 6
               months of the purchase date, and sales tax was not paid on the item.

        The use tax attempts to provide a level playing field between in-state retailers and out-of-state
        vendors. The use tax preserves a key principle of the sales tax – that the tax is due in the state
        where the product is used or consumed, not necessarily where it is purchased.

        If the item brought into Florida is subject to tax, a credit is allowed for taxes paid to another
        state, a U.S. territory, or Washington, D.C. Credit is not given for taxes paid to another country.

        The Florida Department of Revenue (DOR) is responsible for administering, collecting, and
        enforcing all sales taxes. Collections of discretionary sales surtaxes received by DOR are
        returned monthly to the county imposing the tax. Further, there are several state-shared revenue
        programs that allocate some portion of the state sales and use tax to local governments. A few
        revenue sharing programs require as a prerequisite that the county or municipality meet

2
  Alaska, Delaware, Montana, New Hampshire, and Oregon do not impose a state sales and use tax, although Alaska permits
local governments to impose sales and use taxes.
3
  Of the limited services that are taxable, some, such as cable, are taxed at a higher rate.
4
  For a list of exemptions and history, see Florida Revenue Estimating Conference (REC), 2010 Florida Tax Handbook
including Fiscal Impact of Potential Changes, available at http://www.edr.state.fl.us/taxhandbooks/taxhandbook2010.pdf (last
visited 3/8/2010). Exemptions were estimated to total about $10 billion in FY 2010-2011.
5
  Section 212.05(1)(a)1.a., F.S.
6
  Section 212.05(1)(b), F.S.
7
  DOR, Florida’s Sales and Use Tax, GT-800013, last revised 7/2009, available at
http://dor.myflorida.com/dor/forms/2009/gt800013.pdf (last visited 3/8/2010).
BILL: SB 1548                                                                                                           Page 3

         eligibility criteria. While general law restricts the use of some shared revenues, proceeds derived
         from other shared revenues may be used for the general revenue needs of local governments.8

         Local Discretionary Sales Surtax
         A “surtax” is an extra tax or charge.9 Sections 212.054 and 212.055, F.S., authorize Florida
         counties to charge a discretionary sales surtax on all transactions subject to the state sales and use
         tax. Only those surtaxes specifically designated may be levied.

         Section 212.055, F.S., authorizes counties to impose eight local discretionary sales surtaxes on
         all transactions occurring in the county subject to the state tax imposed on sales, use, services,
         rental, admissions, and other transactions and on communications services, defined in ch. 202,
         F.S. Table 1 identifies the eight taxes, the rate limits, and the number of counties authorized to
         impose and the number imposing the tax.10

                                       Table 1: Local Discretionary Sales Surtaxes
                                                                             # Counties
                                              Authorized                                                 # Counties
                    Tax                                                     Authorized
                                               Levy (%)                                                 Levying Tax
                                                                            to Levy Tax
          Charter County
          Transportation                       up to 1%                           31                           2
          System Surtax
          Local Government
                                             0.5% or 1%                           67                          20
          Infrastructure Surtax
          Small County Surtax                0.5% or 1%                           31                          28
          Indigent Care &
                                           up to 0.25%, or
          Trauma Center                                                           65                           1
                                             up to 0.5%
          Surtax
          County Public                                                   1 (Miami-Dade
          Hospital Surtax
                                                  0.5%                                                         1
                                                                             County)
          School Capital
                                              up to 0.5%                          67                          16
          Outlay Surtax
          Voter-Approved
          Indigent                           0.5% or 1%                           60                           4
          Care Surtax
          Emergency Fire
          Rescue Services and                  up to 1%                           65                           0
          Facilities Surtax11
          Source: REC, 2011 Local Government Financial Information Handbook

         The maximum discretionary sales surtax that any county can levy depends upon the county’s
         eligibility for the taxes listed in s. 212.055, F.S.; currently, the maximum ranges between 2% and

8
  For more information see the Florida Revenue Estimating Conference (REC), 2011 Local Government Financial
Information Handbook, August 2009, available at http://www.floridalcir.gov/UserContent/docs/File/reports/lgfih09.pdf (last
visited 3/8/2010)
9
  Black’s Law Dictionary (8th ed., 2004), tax.
10
   The tax rates, duration of the surtax, method of imposition, and proceed uses are individually specified in s. 212.055, F.S.
General limitations, administration, and collection procedures are set forth in s. 212.054, F.S.
11
   Created in 2009 by ch. 2009-182, L.O.F. (Effective July 1, 2009).
BILL: SB 1548                                                                                                              Page 4

         3.5% for Florida’s 67 counties. In general, the levy of a particular tax is subject to county voter
         approval.

         The discretionary sales surtax is based on the rate in the county where the taxable goods or
         services are sold, or delivered into, and is levied in addition to the state taxes. The sales amount
         is not subject to the tax if the property or service is delivered within a county that does not
         impose a surtax. The surtax does not apply to a sales amount above $5,000 on any item of
         tangible personal property. This $5,000 cap does not apply to the sale of any service, rentals of
         real property, or transient rentals.

         Internet Sales and Out of State Vendors
         Under Florida law, each sale is subject to sales tax unless such transaction is specifically exempt.
         Chapter 212, F.S., provides no exemptions for sales over the internet. Use taxes are difficult for
         states to enforce because they must rely on out-of-state vendors to collect the tax money or
         purchasers must remit the tax themselves. Out-of-state vendors, not wanting to be tax collectors
         for states and local governments, argue that states have no jurisdiction over them. A state’s
         ability to compel an out-of-state seller to collect and remit sales tax is limited by the Commerce
         Clause and the Due Process Clause of the U.S. Constitution.12 The U.S. Supreme Court has held
         that the state’s disparate state and local sales tax systems make collecting taxes an undue burden
         on out-of-state retailers.13

         In order for sales occurring over the internet to be subject to the sales tax, there must be
         sufficient nexus between the seller and the state. Nexus has been found to exist when a seller:
                 Has agents in this state who solicit or transact business on behalf of the seller and as a
                 result receive orders for merchandise to be delivered to the purchaser in this state;
                 Has a physical location in this state;
                 Delivers merchandise into this state in vehicles which are leased or owned by the seller;
                 Owns land or buildings located in this state;
                 Stores merchandise in this state for sale or use; or
                 Rents or leases merchandise that is located in Florida in the possession of a lessee.14

         If the person selling the property into this state does not have sufficient nexus or is not registered
         with DOR as a dealer to collect sales tax, and the goods are delivered in Florida, then use tax
         applies and is due from the purchaser.

         According to the U.S. Census Bureau about 70 percent of U.S. households have internet access.15
         The U.S. Census Bureau estimated the total internet or “e-commerce” sales for 2010 at $165.4
         billion, an increase of 14.8 percent (±2.3%) from 2009. “Total retail sales in 2010 increased 7.0


12
   Due Process requires some minimal contact with the taxing state for a taxing statute to be upheld. Upholding a statute
against a Commerce Clause challenge is dependent upon satisfaction of a 4-part test: (1) the tax is applied to an activity with
a substantial nexus with the taxing state; (2) the tax is fairly apportioned; (3) the tax does not discriminate against interstate
commerce; and (4) the tax is fairly related to a service provided by the taxing state.
13
   See Closing the Online Tax Loophole, Blackston, Michelle, NCSL’s State Legislatures, April 2008.
14
   Depending on the jurisdiction, courts have found that these things satisfy nexus while others have found that they were
insufficient alone.
15
   2009 data available at http://www.census.gov/population/www/socdemo/computer.html (last visited 3/31/2011).
BILL: SB 1548                                                                                                 Page 5

        percent (±0.5%) from 2009. E-commerce sales in 2010 accounted for 4.2 percent of total sales.
        E-commerce sales in 2009 accounted for 3.9 percent of total sales.”16

        The issue of sales and use taxes on e-commerce is important to the states for three main reasons:
              The continued growth in e-commerce points to an increasing number of transactions on
              which sales and use taxes will not be collected, resulting in sales tax revenue losses for
              state and local governments;
              Since out-of-state sellers do not have to collect sales and use taxes, except in states where
              they have “nexus,” they enjoy a competitive advantage over “brick and mortar” businesses;
              and
              Because of loopholes for on-line retailers, consumers who can afford access to the internet
              escape paying sales and use taxes while forcing those without access to shoulder a heavier
              burden of the sales tax.17

        A study updated in 2009 estimated that for 2012, Florida would lose out on about $1.484 billion
        in uncollected sales tax revenue from out of state transitions.18 With 67 different state and local
        taxing jurisdictions in Florida, an out-of-state retailer may find it difficult to collect and remit
        sales taxes. There are about 7,500 different taxing jurisdictions at the state and local levels in the
        U.S.

        Internet Tax Freedom Act
        In response to the Internet explosion, Congress enacted the Internet Tax Freedom Act in October
        1998. This legislation called for a 3-year moratorium, from October 1, 1998, to October 21,
        2001, on state and local taxes on Internet access and multiple or discriminatory taxes on
        electronic commerce. This moratorium has been extended several times and currently expires
        November 1, 2014.19

        Streamlined Sales Tax Project
        Because of the rise of e-commerce, a group was formed in 2000 with the National Conference of
        State Legislatures (NCSL), consisting of legislators, tax administrators, and private sector
        representatives, to design and implement a simplified sales tax collection system that could be
        used by traditional brick-and-mortar businesses and businesses involved in e-commerce. In
        response to this effort, the Florida Legislature passed ch. 2000-355, L.O.F., creating a provision
        in s. 213.27, F.S., which grants DOR authority to enter into contracts with public or private
        vendors to develop and implement a voluntary system for sales and use tax collection and
        administration.



16
   Quarterly Retail E-Commerce Sales, 4th Quarter 2010, available at
http://www.census.gov/retail/mrts/www/data/pdf/ec_current.pdf (last visited 3/31/2011).
17
  Graham Williams, “Streamlined Sales Tax for the New Economy,” National Conference of State Legislatures, Nov./Dec.
2000, Vol. 8, No. 44.
18
   Data collected by the National Conference of State Legislatures (NCSL); Donald Bruce and William F. Fox, Center for
Business and Research, University of Tennessee, State and Local Sales Tax Revenue Losses from E-Commerce Estimates as
of April 2009, available at http://www.ncsl.org/default.aspx?TabId=20274 (last visited 3/31/2011).
19
   Created by Pub. L. No. 105-277; Extended to November 2003 by Pub. L. No. 107-75; Extended to November 2007 by Pub.
L. No. 108-435; Extended to November 2014 by Pub. L. No. 110-108.
BILL: SB 1548                                                                                        Page 6

        In 2001, the Uniform Sales and Use Tax Administration Act and the Streamlined Sales Tax
        Agreement was approved and states that adopted the Uniform Sales and Use Tax Administration
        Act or had their governors issue executive orders or similar authorizations were authorized to
        participate in the next phase of discussions with other states for the purpose of developing a
        multi-state, voluntary, streamlined system for the collection and administration of state and local
        sales and use taxes. The Florida Legislature passed ch. 2001-225, L.O.F., which among other
        things, created the Simplified Sales and Use Tax Act, authorizing Florida to participate in the
        next phase of discussions with other states for the purposes of developing the project.

        The result of the Streamlined Sales Tax Project is the Streamlined Sales and Use Tax Agreement
        (SSUTA). It proposes an effort to “modernize” states’ sales and use tax structures to create a
        uniform, simplified taxing system that would apply to all businesses collecting sales and use
        taxes. Participation in collecting sales tax under the agreement is voluntary for sellers who do not
        have a physical presence or “nexus” within a state. However, an end goal of the effort is for
        Congress to require collection from all sellers for all types of commerce.

        Streamlined Sales and Use Tax Agreement
        SSUTA is a multi-state project intended to simplify the administration of sales and use taxes.
        One of the goals of the legislation is to encourage sellers who do not have a physical presence in
        a particular state (such as mail order and internet vendors) to nevertheless collect sales and use
        taxes from their customers. Among other things, SSUTA provides for the certification of third-
        party tax collection agents who will assume a vendor's sales tax collection obligations and also
        provides for the certification of tax collection software.

        Key features of SSUTA include:20
             Uniform definitions within tax laws. Legislatures still choose what is taxable or exempt in
             their state. However, participating states will agree to use the common definitions for key
             items in the tax base and will not deviate from these definitions.
             Rate simplification. States will be allowed one state rate and a second state rate in limited
             circumstances. Local jurisdictions will be allowed one local rate.
             State-level administration of all state and local taxes. Businesses will no longer file tax
             returns with each local government where it conducts business in a state. States will be
             responsible for the administration of all state and local taxes and the distribution of the
             local taxes to the local governments. State and local governments must have common tax
             bases.
             Uniform sourcing rules. The states will have uniform and simple rules as to how they will
             source transactions to state and local governments.
             Simplified exemption administration for use- and entity-based exemptions. Sellers will not
             be liable for uncollected tax when they sell something tax exempt to a purchaser who
             should have been charged the sales tax. Purchasers will be responsible for paying the tax,
             interest, and penalties for claiming incorrect exemptions.
             Uniform audit procedures.
             State funding of the system. To reduce the financial burdens on sellers, states pay the cost
             of collecting the tax for businesses without a physical presence in the state.

20
  See Streamlined Sales Tax Governing Board, Inc., Frequently Asked Questions, available at
http://www.streamlinedsalestax.org/index.php?page=faqs (last visited 4/1/2011).
BILL: SB 1548                                                                                     Page 7


       Currently, 20 states are full members of SSUTA because they have state laws which are in
       compliance with the agreement. These states are: Arkansas, Indiana, Iowa, Kansas, Kentucky,
       Michigan, Minnesota, Nebraska, Nevada, New Jersey, North Carolina, North Dakota, Oklahoma,
       Rhode Island, South Dakota, Vermont, Washington, West Virginia, Wisconsin, and Wyoming.
       There are 4 states that are associate members, meaning that the state is in compliance with
       SSUTA, but their laws, rules, regulations, and policies to bring the state into compliance are not
       in effect but are scheduled to take effect no later than 12 months after becoming an associate
       member. These states include Georgia, Ohio, Tennessee, and Utah. Also, currently, over 1,000
       businesses have voluntarily agreed to collect taxes on out-of-state sales.

III.   Effect of Proposed Changes:

       SB 1548 implements the requirements of SSUTA by making substantial changes to Florida’s
       sales and use tax laws in chs. 212 and 213, F.S. Such changes are meant to simplify Florida’s
       sales and use tax system and qualify the state for participation in the SSUTA, thereby making it
       easier for out-of-state businesses to voluntarily collect and remit taxes to Florida

       SSUTA Conforming Changes

       Section 1 amends current definitions and creates new ones in s. 212.02, F.S., to conform to the
       definitions adopted in the SSUTA in Appendix C – Library of Definitions.

       Bracket System and Rounding
       The SSUTA does not allow any member state to require a dealer to collect tax based upon a
       bracket system, which Florida currently uses. Section 15 amends s. 212.12, F.S., to repeal
       Florida law relating to bracketing. Instead, a provision is added to compute taxes based upon the
       SSUTA. The SSUTA provides for rounding up and is based upon tax computations to the third
       decimal place.

       Additionally, Section 3 (s. 212.0306(6), F.S.), Section 6 (s. 212.04(1)(b), F.S.), Section 7 (s.
       212.05(4), F.S.), Section 8 (s. 212.0506(6), F.S.), remove references to Florida bracket system.

       Sourcing
       In order to meet the requirements of the SSUTA, the bill sets forth specific methods for
       determining where a sale took place, referred to in the SSUTA as “sourcing.” Section 9 amends
       s. 212.054(3), F.S., to set forth the sourcing guidelines of the SSUTA for:
               Retail sales of tangible personal property, excluding leases or rentals;
               Lease or rental of tangible person property;
               Lease or rental of motor vehicles or aircraft;
               Retail sales of transportation equipment, including leases or rentals;
               Retail sale of modular or manufactured homes, excluding mobile homes;
               Retail sale of motor vehicles or mobile homes, excluding leases or rentals;
               Admission charged for an event;
               Lease or rental of real property;
               Retail sale of aircraft, excluding lease or rental;
               Purchase, use, consumption, distribution, or storage of motor vehicles or mobile homes;
BILL: SB 1548                                                                                                                 Page 8

                  Transient rentals;
                  Coin-operated amusement or vending machines; and
                  Orders take by florists.

         The bill also amends s. 212.05(1)(e)1.a., F.S., which sets forth special provisions related to the
         taxation of charges for prepaid calling cards, depending upon where the sale took place, to meet
         the new sourcing guidelines.

         Taxability Matrix
         The SSUTA requires each member state to complete a taxability matrix approved by the
         governing board of the SSUTA. Dealers and certified service providers21 must be relieved from
         liability for having charged and collected the incorrect amount of sales and use tax based on
         erroneous data provided by the state in the taxability matrix. Further, purchasers are also to be
         held harmless when relying on an erroneous taxability matrix provided by the state. Section 12
         amends s. 212.07, F.S., to meet these requirements.

         Vendor Databases
         The SSUTA requires states that permit local jurisdictions to levy a sales and use tax to maintain
         or make available (through a vendor) a database that meets the following requirements:
               Describes the boundaries and boundary changes for all taxing jurisdictions, including the
               effective dates;
               Provides all sales and use tax rates by jurisdiction;
               For areas that include more than one tax rate, the rates assigned to each 5-digit and 9-
               digit zip code that applies the lowest combined rate to each zip code; and
               Optionally include address-based boundary database records for assigning taxing
               jurisdictions and associated tax rates.

         The database may be a state-provided database or a state-certified database. A dealer or certified
         service provider will be held harmless from any tax, interest, or penalties due solely because of
         reliance on erroneous data in the database. If the 9-digit zip code is unavailable or unknown to a
         dealer, then the dealer or certified service provider may apply the tax rate for the 5-digit zip
         code.

         The bill creates s. 212.054(8), F.S. to meet these requirements (Section 9).

         Effective and Termination Dates of Taxes
         Current law provides that discretionary sales surtaxes must take effect January 1 and terminate
         on December 31. The bill provides that any adoption, repeal, or rate change must take effect
         April 1, and the governing body adopting the tax must notify DOR of the change within 10 days
         of the decision, but no later than October 20 preceding the next April 1. DOR must notify dealers
         of the change by February 1 preceding the April 1 effective date. Additionally, the termination of
         a surtax may only be effective on March 31, including for termination dates set prior to January
         1, 2012. These changes in Section 9 meet the requirements of the SSUTA.

21
  “Certified service provider” is defined in s. 213.256, F.S., as an agent certified to perform all of a dealer’s sales tax
functions other than the dealer’s obligation to remit tax on its own purchases. See Section 23 of the bill for clarifying
amendments to this definition.
BILL: SB 1548                                                                                          Page 9


      Section 10 also repeals a reference to an effective date of a tax for emergency fire and rescue
      services and facilities in s. 212.055(8)(i), F.S.

      Section 20 creates s. 213.052, F.S., to create provisions in Florida law that meet the effective
      date requirements of the SSUTA for sales and use taxes. Section 213.052, F.S., provides that a
      sales and use tax rate change is required to take effect on January 1, April 1, July 1, or October 1.
      Additionally, DOR must give dealers notice of the rate change at least 60 days before the
      effective date of the rate change. However, the provision specifies that failure of a dealer to
      receive notice does not relieve it from collecting sales and use tax.

      Section 21 creates s. 213.0521, F.S., to establish the effect of a rate change. It provides that for a
      rate increase, the new rate applies to the first billing period starting on or after the effective date.
      For a rate decrease, the new rate applies to bills rendered on or after the effective date.

      Liability to Pay Tax
      Further, the bill provides a rebuttable presumption that the dealer or certified service provider
      exercised due diligence if it used state-certified software. Dealers or certified service providers
      may become liable if they do not use the state database. A dealer is not liable for failing to
      collect tax at a new rate under certain conditions. Additionally, purchasers are held harmless
      from tax, interest, and penalties for failing to pay the correct tax due as a result of relying on
      erroneous data or the dealer or certified service provider relying on erroneous data. See s.
      212.054(8), (9), and (10), F.S., in Section 9 of the bill.

      Monetary Allowance
      Section 15 amends s. 212.12, F.S., to create a monetary allowance for certified service providers.
      The monetary allowance is required to be in the form of a collection allowance. The allowance
      must be based on certain criteria, but may not be greater than 10 percent of the tax remitted for a
      reporting period.

      Amnesty
      The SSUTA requires member states to provide amnesty for sales and use taxes not collected or
      paid for dealers who register to pay or to collect and remit applicable sales or use tax on sales
      made to purchasers in the state in accordance with the terms of the SSUTA, provided that the
      dealer was not so registered in the state in the twelve-month period preceding the effective date
      of the state's participation in the Agreement. Section 22 creates s. 213.215, F.S., in order to meet
      this requirement of the SSUTA. If a dealer registers with DOR within 12 months after the
      effective date of Florida’s participation in the SSUTA, then the amnesty is provided for
      uncollected or unpaid sales and use tax and any interest or penalties accrued. The dealer must
      remain registered and continue collection and remittance of taxes for at least 36 months for the
      amnesty to apply.

      However, there are two situations in which amnesty is specifically not available:
           When a dealer received notice of the commencement of an audit and the audit is not
           complete, including any related administrative or judicial processes; and
           For taxes already paid to the state or taxes already collected by the dealer.
BILL: SB 1548                                                                                       Page 10

      Discretionary Sales Surtax
      Section 9 amends s. 212.054, F.S., which provides the administrative provisions for discretionary
      sales surtaxes authorized for counties.

      It caps the maximum taxable amount of a sale of tangible personal property at $5,000 for each
      individual item. Under the bill, this cap is limited to sales of motor vehicles, aircraft, boards,
      manufactured homes, modular homes, or mobile homes.

      This section is amended to conform the application of surtax rate changes to utility services to
      the SSUTA. It provides that the new rate applies:
             In the case of a rate adoption or increase, to the first billing period starting on or after the
             effective date of the adoption or increase.
             In the case of a rate termination or decrease, to bills rendered on or after the effective date
             of the termination or decrease.

      Sales and Use Tax Exemptions
      The statutes currently provide more than 200 different exemptions, many of which are in s.
      212.08, F.S.

      Section 13 of the bill amends s. 212.08, F.S., to changes Florida’s current sales and use tax
      exemptions to conform to the requirements of the SSUTA.

      Under the SSUTA, taxation of food is determined by the composition of the item. The bill
      exempts and defines the following items: food and food ingredients, bakery products sold
      without utensils, dietary supplements, and bottled water. The bill provides that the exemption
      does not apply to the following terms: prepared food, soft drinks (does not include beverages that
      contain milk or milk products, soy, rice, or similar milk substitutes, or greater than 50 percent of
      vegetable or fruit juice by volume), vending machine food, candy (not including candy that
      includes flour and does not require refrigeration), and tobacco. These changes result in an
      expansion of some items that are exempt from sales tax under current law, such as ice cream and
      juice containing between 50 and 100 percent fruit juice, and the restriction of others, such as
      caramel corn.

      Under current law, medical items that are exempt from taxation in Florida are designated by the
      Department of Health. The bill brings the list of exempt medical items into compliance with the
      SSUTA. Exempt items include prescription drugs, mobility-enhancing equipment, prosthetic
      devices, durable medical equipment, hypodermic needles, over-the-counter drugs (not including
      grooming and hygiene products), band-aids and the like, and funerals. The bill defines these
      terms for purposes of the exemptions. The bill removes exemptions currently available to
      veterinarians. The bill repeals language directing the Department of Health to advise DOR as to
      the taxability of medical items (s. 212.08(14), F.S.).

      Section 212.08(5)(g), F.S., currently provides an exemption for building materials used in the
      rehabilitation of real property in an enterprise zone. Only one exemption through a refund of
      previously paid taxes is permitted for any single parcel unless there is a change in ownership, a
      new lessor, or a new lessee of the property. The bill would amend this paragraph to provide that
BILL: SB 1548                                                                                      Page 11

      only one exemption through a refund of previously paid taxes is permitted for any single
      building. Also the bill adds a definitions for “full-time employee” and “temporary employee.”

      Currently the definition of “lease,” “let,” or “rental” excludes hourly, daily, or mileage charges
      subject to the jurisdiction of the Interstate Commerce Commission and certain payments to
      owners of high-voltage bulk transmission facilities. Due to changes made to bring the current
      law definitions into compliance with SSUTA, these exclusions were struck. The bill restores
      these exclusions as exemptions from the sales and use tax in s. 212.08(14), F.S.

      Mail Order
      The SSUTA contains specific provisions related to mail order sales. The bill makes several
      changes to conform to the agreement, including:
            Section 11 amends s. 212.06(2)(c), F.S., to strike “a retailer who transacts a mail order
            sale” from the definition of “dealer.”
            Section 11 amends s. 212.06(3)(b), F.S., to conform to SSUTA guidelines to the sales of
            advertising, promotional direct mail, and other direct mail, including guidelines on
            sourcing the sale (and deletes provisions related to mail order sales in s. 212.06(5)(a)2.,
            F.S.).
            Section 7 amends s. 212.05, F.S. to remove a reference to “mail order.”
            Section 15 amends s. 212.12, F.S., to remove references to “mail order” and a provision
            authorizing DOR to negotiate collection allowances with dealers who make mail order
            sales.
            Section 18 amends s. 212.18, F.S., to remove a provision related to mail orders.
            Section 19 amends s. 212.20(4), F.S., to remove a provision related to mail orders.
            Section 42 repeals s. 212.0596, F.S., which relates to taxation of mail order sales.

      Motor Vehicles
      The SSUTA contains specific provisions related to the lease or rental of motor vehicles. Section
      7 amends s. 212.05(1)(c), F.S. to remove special provisions related to the lease or rental of motor
      vehicles from the provisions related to the tax of the lease or rental of tangible personal property.

      Coin-operated Amusement Machines
      Section 7 amends s. 212.05(1)(h), F.S., to raise the tax on coin operated machines from 4 to 6
      percent and amends the divisors to be used to calculate the tax.

      Dealer Registration
      Section 18 amends s. 212.18, F.S., to allow DOR to waive the $5 registration fee for applications
      submitted through the multistate electronic registration system. The SSUTA requires each
      member state to participate in an online sales and use tax registration system in cooperation with
      the other member states.

      Refunds
      Section 14 creates s. 212.094, F.S., related to purchaser requests for refunds. Under current law,
      a purchaser who has overpaid tax to a dealer, or who has paid tax to a dealer when no tax is due,
      must seek a refund from the dealer, not DOR. There is no requirement that a purchaser must
      provide a written request to the dealer.
BILL: SB 1548                                                                                    Page 12

      The bill provides that in order to obtain a refund or credit for a tax collected by a dealer, the
      purchaser must submit a request in writing to the dealer. The purchaser is not permitted to take
      any other action for 60 days after the dealer receives the completed, written request. This does
      not apply to refunds resulting from a return of merchandise to a dealer.

      Section 17 deals with credits or refunds for dealers who remit taxes on transactions that
      ultimately turn out to be unpaid, bad debts. The bill amends s. 212.17(3), F.S., to conform to the
      SSUTA provisions on dealer recovery of bad debts. Changes include:
             Specifying that the calculation of bad debt may not include financing charges or interest,
             sales tax, uncollectable amounts on property that remain in the possession of the selling
             dealer, expenses incurred in collection efforts, and repossessed property.
             Requiring a refund claim to be filed within 12 months after the due date of the return on
             which the bad debt could be claimed when the amount of bad debt exceeds the amount of
             taxable sales for the period of write-off.
             Allowing a certified service provider to file a claim on behalf of a dealer when the
             provider has assumed the filing responsibilities of the dealer. The certified service
             provider is required to credit or refund the full amount of any bad debt recovery to the
             dealer.
             Allowing a dealer or certified service provider to allocate the bad debts across different
             states when the books and records of the dealer or certified service provider support this.

      Simplified Sales and Use Tax Administration Act
      The Simplified Sales and Use Tax Administration Act (the act) is set forth in s. 213.256, F.S.
      Section 23 makes changes to this section of law to conform to the updated SSUTA.

      As used in ss. 213.256 and 213.2567, F.S., the bill adds definitions to the act, including:
             “Agent” means a person appointed by a seller to represent the seller before DOR.
             “Dealer” means any person making sales, leases, or rentals of personal property or
             services.
             “Model 1 seller” means a dealer that has selected a certified service provider as its agent
             to perform all the dealer’s sales and use tax functions.
             “Model 2 seller” means a dealer that has selected a certified automated system to perform
             part of its sales and use tax functions, but retains responsibility for remitting the tax.
             “Model 3 seller” means a dealer that has sales in at least five member states, has total
             annual sales revenue of at least $500 million, has a proprietary system that calculates the
             amount of tax due each jurisdiction, and has entered into a performance agreement with
             the member states which establishes a tax performance standard for the dealer. This could
             also mean an affiliated group of dealers using the same proprietary system.
             “Model 4 seller” means a dealer who is registered under SSUTA but is not one of the
             other models of sellers.
             “Registered under this agreement” means registration by a dealer with the member states
             under the central registration system.

      DOR is authorized to prepare and submit reports and certifications as necessary according to the
      terms of the SSUTA, and to enter into agreements with the governing board of the SSUTA,
      member states, and service providers to facilitate the administration of the tax laws in Florida.
BILL: SB 1548                                                                                        Page 13


      Section 24 creates s. 213.2562, F.S., to permit DOR to review and approve software submitted to
      the governing board of the SSUTA as a certified automated system that accurately reflects the
      taxability of products.

      Section 25 creates s. 213.2567, F.S., related to registration, certification, liability, and audit under
      the SSUTA.

      A dealer that registers pursuant to the SSUTA agrees to collect and remit sales and use taxes for
      all taxable sales into the member states. A dealer selects which model to remit tax under when
      registering, and may be registered by an agent if the registration is submitted in writing to a
      member state. With respect to liability and audits:
              A model 1 seller may contract with a certified service provider to act as its agent and to
              collect and remit sales and use taxes. As the model 1 seller’s agent, the certified service
              provider is also liable for sales and use tax due on all sales transactions it processes for
              the model 1 seller. A dealer selecting this model is also liable for any tax, interest, or
              penalty due in Florida. The state may audit the dealer and its certified service provider
              under Florida law or may audit the certified service provider jointly with other member
              states.
              A model 2 seller that uses a certified automated system remains responsible and is liable
              to the state for reporting and remitting tax. However, a model 2 seller is not responsible
              for errors in reliance on the certified automated system.
              A model 3 seller is liable for the failure of the proprietary system to meet the
              performance standard. DOR is permitted to adopt rules to establish sales tax performance
              standards for model 3 sellers.

      A person who provides a certified automated system is not liable for errors in the software that
      was approved by DOR and certified to the governing board of the SSUTA. However, such
      person is responsible for the proper functioning of the system, liable to the state for
      underpayments of tax due to errors in the functioning of the software, and liable for
      misclassifications of items or transactions that are not corrected within 10 days of notice by
      DOR.

      A person may be certified as certified service provider by DOR if the person:
             Uses a certified automated system;
             Integrates that system with the system of a dealer so that tax can be calculated at the time
             of sale;
             Agrees to remit taxes, file returns, and protect the privacy of tax information pursuant to
             Florida law; and
             Enters into an agreement with DOR concerning the disclosure of information.

      DOR is directed to review software submitted to the governing board of the SSUTA as a
      certified automated system and certify approval of the system if the software meets certain
      standards for calculating taxes and reporting.
BILL: SB 1548                                                                                       Page 14

      Disclosure of confidential tax information may only be made according to a written agreement
      between DOR and the certified service provider. Breach of confidentiality by a certified service
      provider is a misdemeanor of the first degree, punishable as provided in ss. 775.082 or 775.083,
      F.S.

      Other Changes
      Food or Drink Concessionaire Services
      Section 4 amends s. 212.031(1)(a)10., F.S. Under current law, this section provides that a person
      is not engaging in a taxable privilege when renting, leasing, letting, or granting a license to use
      real property if the real property is leased, subleased, licensed, or rented to a person providing
      food and drink concessionaire service within the premises of certain facilities listed in the
      section. The bill adds a provision that the exception to the tax for property used for food or drink
      concessionaire services applies only to the space used exclusively for selling and distributing
      food and drink. Section 5 of the bill provides that this amendment operates retroactively and is
      remedial in nature. This section states that the retroactivity does not create the right to a refund or
      require a refund by any governmental entity of any tax, penalty, or interest remitted to DOR
      before January 1, 2012.

      Admissions Charges
      Section 6 amends s. 212.04(2)(a)2.b., F.S. Under current law, this section provides an exemption
      for admission charges to events that are sponsored by a governmental entity, sports authority, or
      sports commission when held in a facility. The exemption only applies when the governmental
      entity, sports authority, or sports commission is responsible for 100 percent of the risk of success
      or failure of the event and owns 100 percent of the funds at risk for the event. The event may not
      exclusively use student or faculty talent. The terms “sports authority” and “sports commission”
      mean a nonprofit organization that is exempt from federal income tax under s. 501(c)(3) of the
      Internal Revenue Code and contracts with a county or municipal government for the purpose of
      promoting and attracting sports-tourism events to the community with which it contracts.

      The bill eliminates the exemption for a sponsor that is a “sports authority” or “sports
      commission” and rewords the sub-subparagraph.

      Emergency Rules
      Section 26 authorizes DOR to adopt emergency rules to implement this act.

      Legislative Joint Select Committee
      Section 27 directs the President of the Senate and the Speaker of the House of Representatives to
      create a joint select committee to study alternatives for the modernization, simplification, and
      streamlining of taxes in Florida, including the communications services tax. The committee is
      also directed to study how sales and use tax exemptions may be used to encourage economic
      development and how the state’s corporate income tax may be reviews to ensure fairness to all
      businesses.

      Cross-References
      Section 2 (s. 212.03(7)(c), F.S.), Section 28 (s. 11.45(5)(a), F.S.), Section 16 (s. 212.15(1), F.S.),
      Section 29 (s. 196.012(6), F.S.), Section 30 (s. 202.18(1)(b) and (2)(b), F.S.), Section 31 (s.
      203.01(1), F.S.), Section 32 (s. 212.052(1), F.S.), Section 33 (s. 212.13(3), F.S.), Section 34 (s.
BILL: SB 1548                                                                                                          Page 15

         212.081, F.S.), Section 35 (s. 218.245(3), F.S.), Section 36 (s. 218.65(5), (6), and (7), F.S.),
         Section 37 (s. 288.1045(1)(s), F.S.), Section 38 (s. 288.11621(3)(a) and (d), F.S.), Section 39 (s.
         288.1169(6), F.S.), Section 40 (s. 551.102(8), F.S.), and Section 41 (s. 790.0655(1)(a), F.S.)
         make amendments to conform to changes made by the bill and correct cross-references.

         Effective Date
         Section 43 provides an effective date of January 1, 2012.

IV.      Constitutional Issues:

         A.       Municipality/County Mandates Restrictions:

                  This bill does not require cities and counties to expend funds or limit their authority to
                  raise revenue or receive state-shared revenues as specified by s.18, Art VII, of the Florida
                  Constitution.

         B.       Public Records/Open Meetings Issues:

                  None.

         C.       Trust Funds Restrictions:

                  None.

         D.       Other Constitutional Issues:

                  Section 5 of the bill provides that changes made in Section 4 of the bill to s.
                  212.031(1)(a)10., F.S. are remedial in nature and shall apply retroactively. Retroactive
                  application of legislation can implicate the due process provisions of the constitution.22
                  As a general matter, statutes which do not alter vested rights but relate only to remedies
                  or procedure can be applied retroactively.23

V.       Fiscal Impact Statement:

         A.       Tax/Fee Issues:

                  The purpose of SSUTA is to simplify Florida sales and use tax such that out-of-state
                  dealers can voluntarily remit taxes to Florida through the simplified system. The fiscal
                  impact of the collection and remittance of sales and use taxes by mail-order and e-
                  commerce businesses that currently do not collect such taxes for Florida is
                  indeterminate, but could be significant once the Streamlined Sales and Use Tax
                  Agreement is fully implemented.



22
  See State Department of Transportation v. Knowles, 402 So.2d 1155 (Fla. 1981).
23
  See Metropolitan Dade County v. Chase Federal Housing Corporation, 737 So.2d. 494 (Fla. 1999). See also City of
Orlando v. Desjardins, 493 So.2d 1027, 1028 (Fla. 1986)(citations omitted) (“If a statute is found to be remedial in nature, it
can and should be retroactively applied in order to serve its intended purposes.”).
BILL: SB 1548                                                                                                 Page 16

                 A version of this bill was reviewed by the Revenue Estimating Conference in February
                 2005.
                        Estimates were done by issue. The changes in the definitions of “fruit
                        drinks,” “ice cream,” “medical exemptions,” and “farm equipment” made
                        by this act will result in a loss of sales tax revenue. Changing the method
                        used to calculate sales taxes from brackets to rounding will also lead to a
                        decrease in sales tax revenue. The change in the definition of “sales price”
                        to include all delivery charges will result in an increase in sales tax
                        revenue. The removal of the local option sales surtax cap for certain
                        tangible personal property will increase local revenue. The net impact of
                        the committee substitute [was] negative.24

                 The 2005 staff analysis contained the following data:
                      Streamlining Fiscal Impact (millions of dollars)      2005
                                                            State                Local                Total
                                Issues                Cash Recurr.          Cash   Recurr.         Cash     Recurr.

                     Rounding                         (16.5)    (39.5)      (3.4)       (8.3)     (19.9)      (47.8)
                     Farm Equipment                    (3.1)     (7.5)      (0.7)       (1.6)      (3.8)       (9.1)
                     Fruit Drinks Contain.
                      50% or more juice                (1.0)     (2.4)      (0.2)       (0.5)      (1.2)       (2.9)
                     Frozen Dairy and non-dairy        (3.6)     (8.5)      (0.7)       (1.7)      (4.3)      (10.2)
                     Medical Exemptions                (1.2)     (2.9)      (0.2)       (0.6)      (1.4)       (3.5)

                     Delivery Charges                   5.5      13.4        1.2         2.8        6.7        16.2
                     Candy/Food                         2.5       5.9        0.5         1.3        3.0         7.2
                     Local Option                                           20.7        49.7       20.7        49.7

                          Total                       (17.4)    (41.5)      17.2        41.1       (0.2)      (0.4)



        B.       Private Sector Impact:

                 The implementation of the SSUTA should reduce the costs of collecting and remitting
                 state and local sales and use taxes for dealers doing business in Florida and in other
                 member states in the long-term.

                 Additionally, DOR has pointed out short-term costs that dealers may incur to meet the
                 requirements of the SSUTA:25
                        Due to the multiple changes to ch. 212, F.S., proposed by this bill, the bill could
                        potentially affect every dealer with an active Florida sales and use tax registration
                        (553,934 dealers). Taxpayers may incur costs in retraining employees or in
                        reprogramming computers to properly tax or exempt various products and to
                        calculate the correct amount of tax. Dealers may also incur additional costs in
24
   See Senate Staff Analysis and Economic Impact Statement for CS/SB 56, March 7, 2005, on file with the Senate
Commerce and Tourism Committee.
25
   DOR, 2011 Bill Analysis, on file with the Senate Commerce and Tourism Committee. See ss. 120.54(3)(b) and 120.541,
F.S.
BILL: SB 1548                                                                                              Page 17

                            hiring certified service providers to collect and remit the dealer’s tax, or in
                            purchasing or leasing certified tax software or in creating proprietary tax software,
                            both of which would be used to calculate tax due from the dealer.

           C.      Government Sector Impact:

                   DOR has estimated the cost of implementing the provisions of the bill to conform Florida
                   to the SSUTA.26 DOR estimated costs of $96,000 for FY 2010-11; $1.181 million for FY
                   2011-12; $449,486 for FY 2012-13; and $203,215 for FY 2013-14. Estimated costs
                   include:
                           For FY 2010-11: nonrecurring costs of $96,000 for SUNTAX programming costs
                           related to operating as a member of the SSUTA;
                           For FY 2011-12:
                               o $252,175 in nonrecurring costs for two Tax Information Publications to be
                                   sent to the 554,000 dealers in Florida;
                               o $53,000 in nonrecurring costs to hire temporary staff to provide taxpayer
                                   services;
                               o $250,000 in nonrecurring costs and $50,000 in recurring costs related to
                                   the required rate and jurisdictional database of SSUTA;
                               o $526,080 in nonrecurring costs for SUNTAX programming costs related
                                   to operating as a member of the SSUTA; and
                               o $50,000 in recurring costs for the annual fee to participate as a member
                                   state in SSUTA;
                           For FY 2012-13:
                               o $225,240 in nonrecurring costs for Tax Information Publications to be sent
                                   to dealers in Florida related to the implementation of the SSUTA;
                               o $74,557 in nonrecurring costs and $49,669 in recurring costs for return
                                   and revenue processing;
                               o $50,000 in recurring costs related to the required rate and jurisdictional
                                   database of SSUTA; and
                               o $50,000 in recurring costs for the annual fee to participate as a member
                                   state in SSUTA;
                           For FY 2013-14:
                               o $99,338 in nonrecurring costs and $3,877 in recurring costs for return and
                                   revenue processing; and
                               o $50,000 in recurring costs related to the required rate and jurisdictional
                                   database of SSUTA; and
                               o $50,000 in recurring costs for the annual fee to participate as a member
                                   state in SSUTA.

                   Additionally, DOR has stated that the SSUTA was amended in 2010 to provide a new
                   formula for rate of compensation (also known as collection allowance) for dealers
                   registered with the SSUTA. Florida law currently caps collection allowance at $30 per
                   month; however, under the new SSUTA provisions, dealers may be eligible for amounts
                   greater than the current cap in Florida.

26
     DOR, Fiscal Impact Analysis – 2011 Session, on file with the Senate Commerce and Tourism Committee.
 BILL: SB 1548                                                                                                                          Page 18

 VI.     Technical Deficiencies:

         None.

VII.     Related Issues:

         In its analysis of the bill, DOR highlighted provisions that were problematic or needed to be
         amended to conform to the current SSUTA. Additionally, DOR has stated with regard to
         administrative rules needed to implement the bill:27
                  It is anticipated that the statement of estimated regulatory costs may exceed $1 million in
                  the aggregate within 5 years of implementation and may require ratification of any
                  proposed rules and forms by the Legislature. If this occurs, it could take until after the
                  2012 Legislative Session for the amended rules to take effect.

VIII.    Additional Information:

         A.        Committee Substitute – Statement of Substantial 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.




 27
   DOR, 2011 Bill Analysis, on file with the Senate Commerce and Tourism Committee. See ss. 120.54(3)(b) and 120.541,
 F.S.
     Florida Senate - 2011                           COMMITTEE AMENDMENT
     Bill No. SB 1626




                              Ì3615180Î361518


                              LEGISLATIVE ACTION
                   Senate              .              House
                                       .
                                       .
                                       .
                                       .
                                       .




     The Committee on Commerce and Tourism (Lynn) recommended the
     following:


1        Senate Amendment (with title amendment)
2
3        Delete line 8
4    and insert:
5        Section 1. Sections 817.559 and 817.56, Florida Statutes,
6    are repealed.
7
8    ================= T I T L E    A M E N D M E N T ================
9    And the title is amended as follows:
10       Delete lines 3 - 4
11   and insert:
12       s. 817.559, F.S., and s. 817.56, F.S., relating to

                                   Page 1 of 2
     4/4/2011 10:10:50 AM                                     CM.CM.03603
     Florida Senate - 2011                        COMMITTEE AMENDMENT
     Bill No. SB 1626




                             Ì3615180Î361518


13       television picture tubes; providing an effective date.
14




                               Page 2 of 2
     4/4/2011 10:10:50 AM                                 CM.CM.03603
                                                      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 Commerce and Tourism Committee

BILL:           SB 1626
INTRODUCER:     Senator Lynn
SUBJECT:        Television picture tubes
DATE:           April 4, 2011                    REVISED:


           ANALYST                    STAFF DIRECTOR                 REFERENCE                                 ACTION
1. McCarthy                         Cooper                                CM              Pre-meeting
2.
3.
4.
5.
6.



  I.    Summary:

        This bill repeals s. 817.559, F.S., which requires cathode ray tubes (CRT, or television picture
        tubes) be correctly labeled to indicate the new and used components and materials in such
        picture tubes.


 II.    Present Situation:

        Enacted in 1973, s. 817.559, F.S., controls television picture tube labels and provides the
        following definitions:
                “Picture tube” means a cathode ray tube (CRT), commonly known as a television picture
                tube, designed primarily for use in a home-type television receiver alone or in
                combination with any electronic device or appliance.
                “Used picture tube” means a picture tube which has been sold to and used by a
                consumer.
                “Used component or material” means any part or material salvaged from a used or
                secondhand picture tube.

        The statute also provides that no manufacturer, processor, or distributor of television picture
        tubes may offer for sale, or expose for sale, any such tube unless the television picture tube and
        its container, if any, are correctly labeled to indicate the new and used components and materials
        of such tube according to the schedule and manner hereinafter provided.
BILL: SB 1626                                                                                        Page 2

       The description of the picture tube by new and used components and materials shall be indicated
       by setting forth on the label the particular grade and verbatim description as selected from the
       following which applies to such tube:
                Black and white picture tube.—
                    o Grade AA.—Description: All new components and materials, including new glass
                        envelope.
                    o Grade A.—Description: Used glass envelope; all other components and materials
                        are new.
                    o Grade B.—Description: Used glass envelope, used phosphorescent viewing
                        screen, used aluminization, and used internal conductive coating; all other
                        components and materials are new.
                    o Grade C.—Description: Used picture tube for resale; all significant components
                        and materials are used.
                Color picture tube.—
                    o Grade AA.—Description: All new components and materials, including new glass
                        envelope.
                    o Grade A.—Description: Used glass envelope and new or used shadow mask; all
                        other components and materials are new.
                    o Grade B.—Description: New electron gun; all other components and materials are
                        used.
                    o Grade C.—Description: Used picture tube for resale; all significant components
                        and materials are used.
                Used picture tube.—The fact that a used picture tube has been rejuvenated, has a new or
                used brightener attached to it, or has fresh paint or coating on the outside, or any
                combination of the above, shall not change its status or description as a Grade C picture
                tube, and the terms “rebuilt” or “reconditioned” or words of like import shall not be used
                to describe such tube.
                Picture tube seconds.—When a picture tube is a “second,” such tube shall be designated
                by label as a “second” to the exclusion of any other grade designation or component
                description, and the following additional notation shall appear verbatim on the label:
                “This picture tube is a manufacturer’s reject or second line quality tube, but it is capable
                of giving satisfactory performance.”

       Any person who violates the provisions of this section is guilty of a misdemeanor of the second
       degree, punishable as provided in s. 775.082, F.S., or s. 775.083, F.S.


III.   Effect of Proposed Changes:

       Section 1 repeals s. 817.559, F.S., relating to television picture tube labeling requirements.

       Section 2 provides that the act will take effect July 1, 2011.
 BILL: SB 1626                                                                                                      Page 3

 IV.       Constitutional Issues:

           A.       Municipality/County Mandates Restrictions:

                    None.

           B.       Public Records/Open Meetings Issues:

                    None.

           C.       Trust Funds Restrictions:

                    None.

  V.       Fiscal Impact Statement:

           A.       Tax/Fee Issues:

                    None.

           B.       Private Sector Impact:

                    There is a possible cost savings to private industry in that they will no longer have to
                    label picture tubes as outlined in the current statute.

           C.       Government Sector Impact:

                    None.

 VI.       Technical Deficiencies:

           None.

VII.       Related Issues:

           Preliminary research indicates that the demise of the “picture tube” had been expected as far
           back as 2006, where USA Today reported that retailers expect little to no demand for CRTs by
           2009, partly because of a government-imposed deadline requiring television broadcasts
           nationwide to switch to all-digital by February of that year.1

VIII.      Additional Information:

           A.       Committee Substitute – Statement of Substantial Changes:
                    (Summarizing differences between the Committee Substitute and the prior version of the bill.)

                    None.



 1
     http://www.usatoday.com/tech/products/gear/2006-10-22-crt-demise_x.htm
BILL: SB 1626                                                                                                                        Page 4

      B.        Amendments:

                None.

        This Senate Bill Analysis does not reflect the intent or official position of the bill’s introducer or the Florida Senate.
                                                      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 Commerce and Tourism Committee

BILL:           SB 1632
INTRODUCER:     Senator Lynn
SUBJECT:        Florida Industrial Development Corporation
DATE:           April 4, 2011                    REVISED:


           ANALYST                    STAFF DIRECTOR                 REFERENCE                                 ACTION
1. Pugh                             Cooper                                CM              Pre-meeting
2.                                                                        BC
3.
4.
5.
6.



  I.    Summary:

        Chapter 289, F.S., approved by the Legislature in 1961, created a process by which Florida
        residents, businesses, and financial institutions could create a Florida Industrial Development
        Corporation (FIDC) with the power to issue revenue bonds for economic development projects.
        It appears that only two FIDCs have been created, and both have dissolved, according to the state
        Division of Corporations. Despite a statutory reporting requirement, there also appears to be no
        information about these FIDCs’ activities.

        SB 1632 repeals ch. 289, F.S., and deletes cross-references to it in other statutes.

        The repeal of ch. 289, F.S., will not impact other industrial development revenue bond programs
        created for local governments and for the Office of Tourism, Trade, and Economic Development,
        or managed by Enterprise Florida, Inc., (EFI).

        SB 1632 repeals ss. 289.011, 289.021, 289.031, 289.041, 289.051, 289.061, 289.071, 289.081,
        289.091, 289.101, 289.111, 289.121, 289.131, 289.141, 289.151, 289.161, 289.171, 289.181,
        289.191, and 289.201, F.S., and amends ss. 212.08, 220.08, 220.183, 220.62, 440.491, and
        658.67, F.S.
BILL: SB 1632                                                                                                    Page 2

    II.   Present Situation:

          The Legislature in 1961 passed HB 15081 (ch. 61-177, L.O.F.) that created ch. 289, F.S., the
          Florida Industrial Development Corporation. The chapter established a process by which a
          minimum of 25 Florida “persons” (meaning individuals and businesses) could file incorporation
          documents with the state Division of Corporations for the purposes of issuing industrial revenue
          bonds. The chapter specified the powers and duties of an FIDC, which could have a duration of
          50 years unless its board of directors dissolved it. Each FIDC was to make annual reports to what
          is now the Office of Financial Services of the state Financial Services Commission,2 which also
          was statutorily directed to annually examine each FIDC’s financial records. The FIDCs were
          specifically prohibited, pursuant to s. 289.161, F.S., from pledging the credit of the state of
          Florida when issuing revenue bonds.

          Information about how many FIDCs actually were formed, whether they issued any bonds, and if
          so, what types of projects were financed, is lacking. Staff of the Office of Financial Services can
          find no documentation that the required examinations were conducted, nor copies of any annual
          reports. The state Division of Corporations Sunbiz database lists two entities that may be FIDCS
          – the Industrial Development Corporation of Florida, created in 1961 and dissolved in 1991, and
          the Florida Industrial Development Corporation, created in 1979 and dissolved in 1980 – but
          there is no absolute certainty that these entities were created pursuant to ch. 289, F.S.

          The last time any section of this chapter was amended was in 2003, to update obsolete
          references.

          Since the creation of ch. 189, F.S., the Legislature has passed legislation facilitating the creation
          of other bond financing entities focused on economic development, including the Florida
          Development Finance Corporation, in Part IX of ch. 288, F.S., and managed by EFI, and Parts II,
          III and VI of ch. 159, F.S., which allows local governments and local authorities to issue revenue
          bonds.

III.      Effect of Proposed Changes:

          Section 1: Repeals all the sections in ch. 289, F.S., relating to the Florida Industrial Development
          Corporation. This removes the statutory provisions related to: the incorporation of an industrial
          development corporation; the FIDC’s special corporate powers; authorized financial
          transactions; membership of financial institutions; powers of stockholders and members;
          procedures for amending the articles of incorporation; the conduct of corporation business and
          affairs; requirements for saving a portion of annual earned surplus; requirements for meetings;
          corporate existence; dissolution; credit of the state; Federal Small Business Investment Act; tax
          exemptions; credits or privileges; required periodic examinations; and the $50 annual
          occupational license tax for industrial development corporations.

          Section 2: Amends s. 212.08, F.S., to remove a cross-reference.


1
  Sponsored by young legislators Lawton Chiles (future U.S. Senator and Florida Governor) and Don Fuqua (future U.S.
Congressman)
2
  This commission is comprised of the Governor and Cabinet.
BILL: SB 1632                                                             Page 3

       Section 3: Amends s. 220.183, F.S., to remove a cross-reference.

       Section 4: Amends s. 220.62, F.S., to remove a cross-reference.

       Section 5: Amends s. 440.491, F.S., to remove a cross-reference.

       Section 6: Amends s. 658.67, F.S., to remove a cross-reference.

       Section 7: Specifies an effective date of July 1, 2011.

IV.    Constitutional Issues:

       A.       Municipality/County Mandates Restrictions:

                None.

       B.       Public Records/Open Meetings Issues:

                None.

       C.       Trust Funds Restrictions:

                None.

 V.    Fiscal Impact Statement:

       A.       Tax/Fee Issues:

                None.

       B.       Private Sector Impact:

                None.

       C.       Government Sector Impact:

                None.

VI.    Technical Deficiencies:

       None.

VII.   Related Issues:

       None.
 BILL: SB 1632                                                                                                                        Page 4

VIII.   Additional Information:

        A.       Committee Substitute – Statement of Substantial 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 - 2011                           COMMITTEE AMENDMENT
    Bill No. SB 1878




                              Ì244102bÎ244102


                            LEGISLATIVE ACTION
                  Senate              .              House
                                      .
                                      .
                                      .
                                      .
                                      .




    The Committee on Commerce and Tourism (Ring) recommended the
    following:


1       Senate Amendment (with title amendment)
2
3       Delete lines 51 - 182.
4
5   ================= T I T L E    A M E N D M E N T ================
6   And the title is amended as follows:
7       Delete lines 3 - 18
8   and insert:
9       amending s. 48.193, F.S.; including as an




                                  Page 1 of 1
    4/4/2011 3:47:31 PM                                      577-03685-11
                                                      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 Commerce and Tourism Committee

BILL:           SB 1878
INTRODUCER:     Senator Margolis
SUBJECT:        The jurisdiction of the courts
DATE:           April 4, 2011                    REVISED:


           ANALYST                    STAFF DIRECTOR                 REFERENCE                                 ACTION
1. McCarthy                         Cooper                                CM              Pre-meeting
2.                                                                        JU
3.                                                                        BC
4.
5.
6.



  I.    Summary:

        This bill amends s. 48.081, F.S., to permit process to be served on the Secretary of State if other
        individuals identified by statute cannot be personally served, and amends s. 48.151, F.S., to
        specify the requirements related to such actions.

        The bill amends s. 48.193, F.S., to provide in the Florida long-arm statute that Florida courts
        have personal jurisdiction, in some instances, over persons who contractually consent to personal
        jurisdiction in Florida, consistent with current provisions in s. 685.102, F.S., relating to contracts.

        Section 685.101, F.S., is amended to allow non-residents that do not have a business presence in
        Florida to agree that Florida Law will govern the contract, and consequently agree that Florida
        Courts will have jurisdiction in any contractual disputes, should they arise.

        The bill also
                Amends s. 55.502, F.S., to clarify that judgments from Puerto Rico and other U.S.
                territories are entitled to enforcement in Florida;
                Corrects cross-references in the Florida International Commercial Arbitration Act,
                consistent with the United Nations Commission on International Trade Law
                (UNCITRAL) Model Law on International Commercial Arbitration (Model Law) as
                amended in 2006; and
                Amends s. 685.102, F.S., to provide that certain contracts with forum-selection clauses
                are enforceable if made “consistent with” rather than “pursuant to” s. 685.101, F.S., and
                apply the change prospectively.
BILL: SB 1878                                                                                                    Page 2

          This bill substantially amends the following sections of the Florida Statutes: 48.081, 48.151,
          48.193, 55.502, 684.0019, 684.0026, 685.101, and 685.102.

    II.   Present Situation:

          Under Florida law, service of process and personal jurisdiction are two distinct but related
          concepts. Both are necessary before a defendant, either an individual or business entity, may be
          compelled to answer a claim brought in a court of law. Personal jurisdiction refers to whether the
          actions of an individual or business entity as set forth in the applicable statutes permit the court
          to exercise jurisdiction in a lawsuit brought against the individual or business entity in this state.
          Service of process is the means of notifying a party of a legal claim and, when accomplished,
          enables the court to exercise jurisdiction over the defendant and proceed to judgment. Personal
          jurisdiction over a nonresident of the state is circumscribed by constitutional considerations of
          minimum contacts as stated in the seminal case of International Shoe Co. v. Washington, 326
          U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945), and its progeny. As explained in Venetian Salami,
          two inquiries must be made regarding personal jurisdiction over a nonresident:

                 First, it must be determined that the complaint alleges sufficient jurisdictional facts to
                 bring the action within the ambit of the statute; and if it does, the next inquiry is whether
                 sufficient “minimum contacts” are demonstrated to satisfy due process requirements.1

          “It is well-settled that „[a] judgment entered without valid service is void for lack of personal
          jurisdiction and may be collaterally attacked at any time.‟”2

          Section 48.081, F.S., specifies the requirements for service of process on corporations who are
          named as defendant in lawsuits. This statute does not address situations regarding a foreign
          private corporation who used to do business in Florida but no longer has a presence, employees
          or officers in the state. Consequently, a plaintiff is unable to serve such a corporation with
          process.

          Section 48.151, F.S., specifies the requirements for effectuating service of process on statutory
          agents for certain persons. Subsection (1), establishes the following responsibilities for statutory
          agents for service of process:

                 The public officer, board, agency, or commission so served shall file one copy in his or
                 her or its records and promptly send the other copy, by registered or certified mail, to the
                 person to be served as shown by his or her or its records. Proof of service on the public
                 officer, board, agency, or commission shall be by a notice accepting the process which
                 shall be issued by the public officer, board, agency, or commission promptly after service
                 and filed in the court issuing the process. The notice accepting service shall state the date
                 upon which the copy of the process was mailed by the public officer, board, agency, or
                 commission to the person being served and the time for pleading prescribed by the rules
                 of procedure shall run from this date.

1
 Borden v. East-European Ins. Co., 921 So. 2d 587, 591-592 (Fla. 2006) (internal citations omitted).
2
 Alvarado v. Cisneros, 919 So. 2d 585, 587 (Fla. 3d DCA 2006) (quoting Great Am. Ins. Co. v. Bevis, 652 So. 2d 382,
383(Fla. 2d DCA 1995)).
BILL: SB 1878                                                                                                                Page 3


           Subsection (5) states that the Secretary of State is the agent for service of process for any retailer,
           dealer or vendor who has failed to designate an agent for service of process.

           Long-Arm Jurisdiction
           Section 48.193, F.S., establishes a broad list of acts that can subject a person to the jurisdiction of
           courts of this state.3 This section is also known as the Florida long-arm statute.

           Section 685.102, F.S., establishes acts relating to contracts that can subject a person to the
           jurisdiction of the courts of this state, including a foreign defendant who enters into a contract
           and satisfies the other requirements related to choice of law in s. 685.101, F.S.

           Section 685.101, F.S., establishes a choice of law provision within Florida Statutes whereby
           parties to any agreement may chose to have the law of this state govern such contract. However,
           subsection (2) restricts the choice of law to contracts, agreements or undertakings:

3
    Section 48.193, F.S., states in part:
            (1) Any person, whether or not a citizen or resident of this state, who personally or through an agent does any of
           the acts enumerated in this subsection thereby submits himself or herself and, if he or she is a natural person, his or
           her personal representative to the jurisdiction of the courts of this state for any cause of action arising from the doing
           of any of the following acts:
           (a) Operating, conducting, engaging in, or carrying on a business or business venture in this state or having an
           office or agency in this state.
           (b) Committing a tortious act within this state.
           (c) Owning, using, possessing, or holding a mortgage or other lien on any real property within this state.
           (d) Contracting to insure any person, property, or risk located within this state at the time of contracting.
           (e) With respect to a proceeding for alimony, child support, or division of property in connection with an action to
           dissolve a marriage or with respect to an independent action for support of dependents, maintaining a matrimonial
           domicile in this state at the time of the commencement of this action or, if the defendant resided in this state
           preceding the commencement of the action, whether cohabiting during that time or not. This paragraph does not
           change the residency requirement for filing an action for dissolution of marriage.
           (f) Causing injury to persons or property within this state arising out of an act or omission by the defendant outside
           this state, if, at or about the time of the injury, either:
           1. The defendant was engaged in solicitation or service activities within this state; or
           2. Products, materials, or things processed, serviced, or manufactured by the defendant anywhere were used or
           consumed within this state in the ordinary course of commerce, trade, or use.
           (g) Breaching a contract in this state by failing to perform acts required by the contract to be performed in this
           state.
           (h) With respect to a proceeding for paternity, engaging in the act of sexual intercourse within this state with
           respect to which a child may have been conceived.
           (2) A defendant who is engaged in substantial and not isolated activity within this state, whether such activity is
           wholly interstate, intrastate, or otherwise, is subject to the jurisdiction of the courts of this state, whether or not the
           claim arises from that activity.
           (3) Service of process upon any person who is subject to the jurisdiction of the courts of this state as provided in
           this section may be made by personally serving the process upon the defendant outside this state, as provided in s.
           48.194. The service shall have the same effect as if it had been personally served within this state.
           (4) If a defendant in his or her pleadings demands affirmative relief on causes of action unrelated to the
           transaction forming the basis of the plaintiff‟s claim, the defendant shall thereafter in that action be subject to the
           jurisdiction of the court for any cause of action, regardless of its basis, which the plaintiff may by amendment assert
           against the defendant.
           (5) Nothing contained in this section limits or affects the right to serve any process in any other manner now or
           hereinafter provided by law.
BILL: SB 1878                                                                                            Page 4

                    Regarding any transaction which does not bear a substantial or reasonable relation to this
                    state in which every party is either or a combination of:
                        1. A resident and citizen of the United States, but not of this state; or
                        2. Incorporated or organized under the laws of another state and does not maintain a
                        place of business in this state; . . .

           Florida Enforcement of Foreign Judgments Act
           Under the Florida Enforcement of Foreign Judgments Act (act), ss. 55.501-55.509, F.S., foreign
           judgments may be enforced in Florida. The foreign judgments that may be enforced under the act
           include “any judgment, decree, or order of a court of any other state or of the United States if
           such judgment, decree, or order is entitled to full faith and credit in this state.”4 In Rodriguez v.
           Nasrallah, 659 So. 2d 437, 439 (Fla. 1st DCA 1995), the court stated that “[j]udgments of courts
           in Puerto Rico are entitled to full faith and credit in the same manner as judgments from courts of
           sister States.” As a result, the court permitted the enforcement of a Puerto Rican judgment in
           Florida. However, a judgment from a Puerto Rican court is not a judgment from a state court as
           required by the act. Accordingly, the wording of the act would appear to preclude the
           enforcement of the judgments of courts for U.S. territories and possessions in Florida.

           Florida International Commercial Arbitration Act
           Chapter 2010-60, L.O.F., repealed the then current law relating to international commercial
           arbitration and adopted instead the United Nations Commission on International Trade Law
           (UNCITRAL) Model Law on International Commercial Arbitration (Model Law) as amended in
           2006.

           Chapter 684, F.S., in accordance with the UNCITRAL Model Law on International Commercial
           Arbitration, applies to any international commercial arbitration subject to an agreement between
           the United States of America and any other country. The law provides certain definitions,
           principles under which the law is to be interpreted, procedural requirements, discovery and
           evidentiary requirements, and arbitral tribunal powers and immunity.

           The law also limits a court‟s authority to intervene in arbitration and specifies when a court
           should intervene.

III.       Effect of Proposed Changes:

           Section 1 amends s. 48.081, F.S., to permit process to be served on the Secretary of State if
           representatives of a corporation, as identified in this section, cannot be personally served
           pursuant to s. 48.151, F.S.

           Section 2 amends s. 48.151, F.S., setting out the procedure to be used for service on the
           Secretary of State when a domestic corporation or a registered foreign corporation is being
           served pursuant s. 48.081, F.S., as amended in Section 1 of the bill. Specifically, to require:




4
    Section 55.502(1), F.S.
BILL: SB 1878                                                                                       Page 5

                That process served on the Secretary of State on behalf of a defendant corporation be
                accompanied by a fee, an affidavit detailing other attempts to serve the corporation, and
                known addresses of representatives of the corporation, and multiple copies of the process;
                That the Secretary of State mail, by regular and registered/certified mail, a copy of the
                process to representatives of the defendant corporation;
                That the Secretary of State provide a notice of service to the plaintiff or plaintiff‟s
                attorney; and
                The Secretary of State shall explain the reasons for rejecting the service of process.

      Section 3 amends s. 48.193, F.S., to provide in the Florida long-arm statute that Florida courts
      have personal jurisdiction, in some instances, over persons who contractually consent to personal
      jurisdiction in Florida, consistent with current provisions in s. 685.102, F.S. Specifically, persons
      who enter into contracts that comply with s. 685.102, F.S., are subject to the jurisdiction of
      Florida courts.

      Section 4 amends subsection (1) of s. 55.502, F.S., to delete the limitation of the term foreign
      judgments to “any other state or of the United States,” thereby allowing for judgments from
      Puerto Rico and other territories or possession of the United States to be recognized and be
      entitled to enforcement in Florida.

      Sections 5 and 6 amend the Florida International Commercial Arbitration Act (act), which was
      adopted in 2010, to change cross-references that the International Law Section of the Florida Bar
      represent were “inadvertent clerical errors” in the crafting of the act, which are inconsistent with
      the UNCITRAL Model Law on commercial Arbitration.

      Section s. 684.0018, F.S., authorizes arbitral tribunals to order interim measures, unless
      otherwise agreed to by the parties. An interim measure must be requested by a party and is a
      temporary measure that may include an order to:
         (1) Maintain or restore the status quo;
         (2) Take action to prevent, or refrain from an action that is likely to cause, current or
             imminent harm or prejudice to the arbitral process;
         (3) Preserve assets, which may be used to satisfy an award; or
         (4) Preserve evidence relevant and material to the dispute being arbitrated.

      Section 684.0019, F.S., requires a party to prove certain conditions prior to requesting an interim
      measure. Subsection (1) specifies that a party must prove:
             Without the interim measure, there would be irreparable harm that an award would not
             repair and the irreparable harm outweighs the harm that would affect the party to whom
             the interim measure is against; and
             It is reasonably possible that the party requesting the interim measure will succeed on the
             merits of its claim.

      Subsection (2) of s. 684.019, F.S., states that with regard to a request for an interim measure
      under s. 684.018, F.D., the requirements apply only to the extent the arbitral tribunal considers
      appropriate.
BILL: SB 1878                                                                                          Page 6

      Section 5 amends 684.019(2), F.S., to replace the general reference to s. 684.018, F.S., to a
      specific reference to subsection (4) of s. 684.018, F.S., which is consistent with the UNCITRAL
      model law.

      Section 684.026, F.S., provides for the recognition and enforcement of an interim measure.
      Subsection (1) states that an interim measure is binding upon the parties and enforced, upon
      application of a party, by a court or a country‟s equivalent authority, “subject to s. 684.0019(1).”

      Section 6 amends s. 684.0026(1), F.S., to replace the reference to s. 684.0019(1), F.S., with s.
      684.0027, F.S., which specifies the grounds for refusing recognition or enforcement. This is
      consistent with the UNCITRAL model law.

      Section 7 amends s. 685.101, F.S., to allow entities who are entering into any contract,
      agreement, or undertaking contingent or otherwise involving in the aggregate at least $250,000,
      to agree that the law of this state govern such contract, agreement, or undertaking. This change
      removes the requirement that the transaction bear a substantial or reasonable relation to this state.

      Changes to this section take effect prospectively – for contracts entered into on or after July 1,
      2011.

      Section 8 amends s. 685.102, F.S., to clarify that certain contracts with forum-selection clauses
      are enforceable if made “consistent with” rather than “pursuant to” s. 685.101, F.S., which
      relates to choice of law.

      Changes to this section take effect prospectively – for contracts entered into on or after July 1,
      2011.

      Section 9 provides an effective date of July 1, 2011.

IV.   Constitutional Issues:

      A.        Municipality/County Mandates Restrictions:

                None.

      B.        Public Records/Open Meetings Issues:

                None.

      C.        Trust Funds Restrictions:

                None.

V.    Fiscal Impact Statement:

      A.        Tax/Fee Issues:

                Section 2 of the bill authorizes a service fee of $10 for service on the Secretary of State.
 BILL: SB 1878                                                                                                                            Page 7

            B.       Private Sector Impact:

                     According to The Florida Bar, International Law Section, the bill enhances the business
                     climate in Florida by clarifying and streamlining existing legislation related to
                     international law matters in order to increase Florida‟s attractiveness as a business
                     friendly state.5

            C.       Government Sector Impact:

                     Currently the Secretary of State accepts substitute service of process under 17 statutory
                     provisions. This bill affects two of these provisions and it is estimated that the yearly cost
                     to comply with the requirements of this bill will be $917,397, with revenue projected to
                     be $37,500.6

                     The change in law to allow parties the choice of using Florida Law in their contracts may
                     increase the amount of litigation in the state and create a corresponding cost with respect
                     to the court system.

 VI.        Technical Deficiencies:

            None.

VII.        Related Issues:

            None.

VIII.       Additional Information:

            A.       Committee Substitute – Statement of Substantial 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.




 5
     Memo from The Florida Bar, International Law Section on file with the Senate Commerce and Tourism Committee.
 6
     Department of State analysis on file with the Senate Commerce and Tourism Committee.
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                              LEGISLATIVE ACTION
                   Senate              .            House
                                       .
                                       .
                                       .
                                       .
                                       .




     The Committee on Commerce and Tourism (Gaetz) recommended the
     following:


1        Senate Amendment (with title amendment)
2
3
4        Delete everything after the enacting clause
5    and insert:
6        Section 1. Subsection (7) is added to section 20.21,
7    Florida Statutes, to read:
8        20.21 Department of Revenue.—There is created a Department
9    of Revenue.
10       (7) The Destination Resort Commission is created within the
11   Department of Revenue.
12       Section 2. Subsection (17) is added to section 120.80,

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13   Florida Statutes, to read:
14         120.80 Exceptions and special requirements; agencies.—
15         (17) THE DESTINATION RESORT COMMISSION.—
16         (a) The Destination Resort Commission is exempt from the
17   hearing and notice requirements of ss. 120.569 and 120.57(1)(a)
18   in proceedings for the issuance, denial, renewal, or amendment
19   of a destination resort license.
20         (b) Section 120.60 does not apply to applications for a
21   destination resort license.
22         (c) Notwithstanding the provisions of s. 120.542, the
23   Destination Resort Commission may not accept a petition for
24   waiver or variance and may not grant any waiver or variance from
25   the requirements of the Destination Resort Act, sections 3
26   through 35 of this act.
27         Section 3. This section and sections 4 through 35 of this
28   act may be cited as the “Destination Resort Act” or the “Resort
29   Act.”
30         Section 4. Definitions.—As used in the Resort Act, the
31   term:
32         (1) “Affiliate” means a person who, directly or indirectly,
33   through one or more intermediaries:
34         (a) Controls, is controlled by, or is under common control
35   of;
36         (b) Is in a partnership or joint venture relationship with;
37   or
38         (c) Is a shareholder of a corporation, a member of a
39   limited liability company, or a partner in a limited liability
40   partnership with,
41

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42   an applicant for a resort license or a resort licensee.
43       (2) “Ancillary areas” includes the following areas within a
44   limited gaming facility, unless the context otherwise requires:
45       (a) Major aisles, the maximum area of which may not exceed
46   the limit within any part of the limited gaming facility as
47   specified by the commission.
48       (b) Back-of-house facilities.
49       (c) Any reception or information counter.
50       (d) Any area designated for the serving or consumption of
51   food and beverages.
52       (e) Any retail outlet.
53       (f) Any area designated for performances.
54       (g) Any area designated for aesthetic or decorative
55   displays.
56       (h) Staircases, staircase landings, escalators, lifts, and
57   lift lobbies.
58       (i) Bathrooms.
59       (j) Any other area that is not intended to be used for the
60   conduct or playing of games or as a gaming pit as defined by
61   rules of the commission or specified in the application for the
62   destination resort license.
63       (3) “Applicant,” as the context requires, means a person
64   who applies for a resort license, supplier’s license, or
65   occupational license. A county, municipality, or other unit of
66   government is prohibited from applying for a resort license.
67       (4) “Chair” means the chair of the Destination Resort
68   Commission.
69       (5) “Commission” means the Destination Resort Commission.
70       (6) “Conflict of interest” means a situation in which the

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71   private interest of a member, employee, or agent of the
72   commission may influence his or her judgment in the performance
73   of his or her public duty under the Resort Act. A conflict of
74   interest includes, but is not limited to:
75       (a) Any conduct that would lead a reasonable person having
76   knowledge of all of the circumstances to conclude that the
77   member, employee, or agent of the commission is biased against
78   or in favor of an applicant.
79       (b) The acceptance of any form of compensation from a
80   source other than the commission for any services rendered as
81   part of the official duties of the member, employee, or agent of
82   the commission.
83       (c) Participation in any business transaction with or
84   before the commission in which the member, employee, or agent of
85   the commission, or the parent, spouse, or child of a member,
86   employee, or agent, has a financial interest.
87       (7) “Department” means the Department of Revenue.
88       (8) “Destination resort” or “resort” means a freestanding,
89   land-based structure in which limited gaming may be conducted. A
90   destination resort is a mixed-use development consisting of a
91   combination of various tourism amenities and facilities,
92   including, but not limited to, hotels, villas, restaurants,
93   limited gaming facilities, convention facilities, attractions,
94   entertainment facilities, service centers, and shopping centers.
95       (9) “Destination resort license” or “resort license” means
96   a license to operate and maintain a destination resort having a
97   limited gaming facility.
98       (10) “District” means any of the following five districts
99   of the state:

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100         (a) District One: Escambia, Santa Rosa, Okaloosa, Walton,
101   Holmes, Jackson, Washington, Bay, Calhoun, Gulf, Franklin,
102   Liberty, Gadsden, Leon, Wakulla, Jefferson, Madison, Hamilton,
103   Taylor, Lafayette, Suwannee, Columbia, Baker, Union, Bradford,
104   Alachua, Gilchrist, Dixie, and Levy Counties.
105         (b) District Two: Nassau, Duval, Clay, Putnam, St. Johns,
106   Flagler, Marion, Volusia, Lake, Seminole, Orange, Hernando,
107   Polk, and Osceola Counties.
108         (c) District Three: Citrus, Sumter, Pasco, Pinellas,
109   Hillsborough, Manatee, Hardee, DeSoto, Sarasota, Charlotte, Lee,
110   Collier, Monroe, Highlands, Okeechobee, Glades, and Hendry
111   Counties.
112         (d) District Four: Brevard, Indian River, St. Lucie,
113   Martin, and Palm Beach Counties.
114         (e) District Five: Broward and Miami-Dade Counties.
115         (11) “Executive director” means the executive director of
116   the commission.
117         (12) “Financial interest” or “financially interested” means
118   any interest in investments or awarding of contracts, grants,
119   loans, purchases, leases, sales, or similar matters under
120   consideration or consummated by the commission, or ownership in
121   an applicant or a licensee. A member, employee, or agent of the
122   commission is deemed to have a financial interest in a matter
123   if:
124         (a) The individual owns any interest in any class of
125   outstanding securities that are issued by a party to the matter
126   under consideration by the commission, except indirect interests
127   such as a mutual fund; or
128         (b) The individual is employed by or is an independent

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129   contractor for a party to a matter under consideration by the
130   commission.
131       (13) “Gaming pit” means an area commonly known as a gaming
132   pit or any similar area from which limited gaming employees
133   administer and supervise the games.
134       (14) “Gross receipts” means the total of cash or cash
135   equivalents received or retained as winnings by a resort
136   licensee and the compensation received for conducting any game
137   in which the resort licensee is not party to a wager, less cash
138   taken in fraudulent acts perpetrated against the resort licensee
139   for which the resort licensee is not reimbursed. The term does
140   not include:
141       (a) Counterfeit money or tokens;
142       (b) Coins of other countries which are received in gaming
143   devices and which cannot be converted into United States
144   currency;
145       (c) Promotional credits or “free play” as provided by the
146   resort licensee as a means of marketing the limited gaming
147   facility; or
148       (d) The amount of any credit extended until collected.
149       (15) “Individual” means a natural person.
150       (16) “Institutional investor” means, but is not limited to:
151       (a) A retirement fund administered by a public agency for
152   the exclusive benefit of federal, state, or county public
153   employees.
154       (b) An employee benefit plan or pension fund that is
155   subject to the Employee Retirement Income Security Act of 1974
156   (ERISA).
157       (c) An investment company registered under the Investment

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158   Company Act of 1940.
159       (d) A collective investment trust organized by a bank under
160   12 C.F.R. part 9, s. 9.18.
161       (e) A closed-end investment trust.
162       (f) A life insurance company or property and casualty
163   insurance company.
164       (g) A financial institution.
165       (h) An investment advisor registered under the Investment
166   Advisers Act of 1940.
167       (17) “Junket enterprise” means any person who, for
168   compensation, employs or otherwise engages in the procurement or
169   referral of persons for a junket to a destination resort
170   licensed under the Resort Act regardless of whether those
171   activities occur within this state. The term does not include a
172   resort licensee or applicant for a resort license or a person
173   holding an occupational license.
174       (18) “License,” as the context requires, means a resort
175   license, supplier’s license, or an occupational license.
176       (19) “Licensee,” as the context requires, means a person
177   who is licensed as resort licensee, supplier licensee, or
178   occupational licensee.
179       (20) “Limited gaming,” “game,” or “gaming,” as the context
180   requires, means the games authorized pursuant to the Resort Act
181   in a limited gaming facility, including, but not limited to,
182   those commonly known as baccarat, twenty-one, poker, craps, slot
183   machines, video gaming of chance, roulette wheels, Klondike
184   tables, punch-board, faro layout, numbers ticket, push car, jar
185   ticket, pull tab, or their common variants, or any other game of
186   chance or wagering device that is authorized by the commission.

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187       (21) “Limited gaming employee” means any employee of a
188   resort licensee, including, but not limited to:
189       (a) Cashiers.
190       (b) Change personnel.
191       (c) Count room personnel.
192       (d) Slot machine attendants.
193       (e) Hosts or other individuals authorized to extend
194   complimentary services, including employees performing functions
195   similar to those performed by a representative for a junket
196   enterprise.
197       (f) Machine mechanics, computer machine technicians, or
198   table game device technicians.
199       (g) Security personnel.
200       (h) Surveillance personnel.
201       (i) Promotional play supervisors, credit supervisors, pit
202   supervisors, cashier supervisors, shift supervisors, table game
203   managers, assistant managers, and other supervisors and
204   managers.
205       (j) Boxmen.
206       (k) Dealers or croupiers.
207       (l) Floormen.
208       (m) Personnel authorized to issue promotional credits.
209       (n) Personnel authorized to issue credit.
210
211   The term includes an employee of a person holding a supplier’s
212   license whose duties are directly involved with the repair or
213   distribution of slot machines or table game devices or
214   associated equipment sold or provided to a resort licensee. The
215   term does not include bartenders, cocktail servers, or other

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216   persons solely engaged in preparing or serving food or
217   beverages, clerical or secretarial personnel, parking
218   attendants, janitorial staff, stage hands, sound and light
219   technicians, and other nongaming personnel as determined by the
220   commission. The term includes a person employed by a person or
221   entity other than a resort licensee who performs the functions
222   of a limited gaming employee.
223       (22) “Limited gaming facility” means the limited gaming
224   floor and any ancillary areas.
225       (23) “Limited gaming floor” means the approved gaming area
226   of a resort. Ancillary areas in or directly adjacent to the
227   gaming area are not part of the limited gaming floor for
228   purposes of calculating the size of the limited gaming floor.
229       (24) “Managerial employee” has the same meaning as in s.
230   447.203(4), Florida Statutes.
231       (25) “Occupational licensee” means a person who is licensed
232   to be a limited gaming employee.
233       (26) “Qualifier” means an affiliate, affiliated company,
234   officer, director, or managerial employee of an applicant for a
235   resort license, or a person who holds a direct or indirect
236   equity interest in the applicant. The term may include an
237   institutional investor. As used in this subsection, the terms
238   “affiliate,” “affiliated company,” and “a person who holds a
239   direct or indirect equity interest in the applicant” do not
240   include a partnership, a joint venture relationship, a
241   shareholder of a corporation, a member of a limited liability
242   company, or a partner in a limited liability partnership that
243   has a direct or indirect equity interest in the applicant for a
244   resort license of 5 percent or less and is not involved in the

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245   gaming operations as defined by the rules of the commission.
246       (27) “Supplier licensee” or “supplier” means a person who
247   is licensed to furnish gaming equipment, devices, or supplies or
248   other goods or services to a resort licensee.
249       (28) “Wagerer” means a person who plays a game authorized
250   under the Resort Act.
251       Section 5. Destination Resort Commission; creation and
252   membership.—
253       (1) CREATION.—There is created the Destination Resort
254   Commission assigned to the Department of Revenue for
255   administrative purposes only. The commission is a separate
256   budget entity not subject to control, supervision, or direction
257   by the Department of Revenue in any manner, including, but not
258   limited to, personnel, purchasing, transactions involving real
259   or personal property, and budgetary matters. The commission
260   shall be composed of seven members who are residents of the
261   state and who have experience in corporate finance, tourism,
262   convention and resort management, gaming, investigation or law
263   enforcement, business law, or related legal experience. The
264   members of the commission shall serve as the agency head of the
265   Destination Resort Commission. The commission is exempt from the
266   provisions of s. 20.052, Florida Statutes.
267       (2) MEMBERS.—The members shall be appointed by the Governor
268   and confirmed by the Senate in the legislative session following
269   appointment. Each member shall be appointed to a 4-year term.
270   However, for the purpose of providing staggered terms, of the
271   initial appointments, four members shall be appointed to 4-year
272   terms and three members shall be appointed to 2-year terms.
273   Terms expire on June 30. Upon the expiration of the term of a

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274   commissioner, the Governor shall appoint a successor to serve
275   for a 4-year term. A commissioner whose term has expired shall
276   continue to serve on the commission until such time as a
277   replacement is appointed. If a vacancy on the commission occurs
278   before the expiration of the term, it shall be filled for the
279   unexpired portion of the term in the same manner as the original
280   appointment.
281       (a)1. One member of the commission must be a certified
282   public accountant licensed in this state who possesses at least
283   5 years of experience in general accounting. The member must
284   also possess a comprehensive knowledge of the principles and
285   practices of corporate finance or auditing, general finance,
286   gaming, or economics.
287       2. One member of the commission must have experience in the
288   fields of investigation or law enforcement.
289       3. Each district must be represented by at least one member
290   of the commission who must reside in that district.
291       4. When making appointments to the commission, the Governor
292   shall announce the district and classification by experience of
293   the person appointed.
294       (b) A person may not be appointed to or serve as a member
295   of the commission if the person:
296       1. Is an elected state official;
297       2. Is licensed by the commission, or is an officer of, has
298   a financial interest in, or has a direct or indirect contractual
299   relationship with, any applicant for a resort license or resort
300   licensee;
301       3. Is related to any person within the second degree of
302   consanguinity or affinity who is licensed by the commission; or

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303       4. Has, within the 10 years preceding his or her
304   appointment, been under indictment for, convicted of, pled
305   guilty or nolo contendere to, or forfeited bail for a felony or
306   a misdemeanor involving gambling or fraud under the laws of this
307   or any other state or the United States.
308       (c) Members of the commission shall serve full time.
309       (3) CHAIR AND VICE CHAIR.—
310       (a) The chair shall be appointed by the Governor. The vice
311   chair of the commission shall be elected by the members of the
312   commission during the first meeting of the commission on or
313   after July 1 of each year. The chair shall be the administrative
314   head of the commission. The chair shall set the agenda for each
315   meeting. The chair shall approve all notices, vouchers,
316   subpoenas, and reports as required by the Resort Act. The chair
317   shall preserve order and decorum and shall have general control
318   of the commission meetings. The chair shall decide all questions
319   of order. The chair may name any member of the commission to
320   perform the duties of the chair for a meeting if such
321   substitution does not extend beyond that meeting.
322       (b) If for any reason the chair is absent and fails to name
323   a member, the vice chair shall assume the duties of the chair
324   during the chair’s absence. On the death, incapacitation, or
325   resignation of the chair, the vice chair shall perform the
326   duties of the office until the Governor appoints a successor.
327       (c) The administrative responsibilities of the chair are to
328   plan, organize, and control administrative support services for
329   the commission. Administrative functions include, but are not
330   limited to, finance and accounting, revenue accounting,
331   personnel, and office services.

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332       (4) QUORUM.—Four members of the commission constitute a
333   quorum.
334       (5) HEADQUARTERS.—The headquarters of the commission shall
335   be located in Tallahassee.
336       (6) MEETINGS.—The commission must meet at least monthly.
337   Meetings may be called by the chair or by four members of the
338   commission upon 72 hours’ public notice. The initial meeting of
339   the commission must be held by October 1, 2011.
340       (7) AGENCY HEAD.—The commission shall serve as the agency
341   head for purposes of chapter 120, Florida Statutes. The
342   executive director of the commission may serve as the agency
343   head for purposes of final agency action under chapter 120,
344   Florida Statutes, for all areas within the regulatory authority
345   delegated to the executive director’s office.
346       Section 6. Destination Resort Commission; powers and
347   duties.—
348       (1) The commission has jurisdiction over and shall
349   supervise all destination resort limited gaming activity
350   governed by the Resort Act, including the power to:
351       (a) Authorize limited gaming at five destination resorts.
352       (b) Conduct such investigations as necessary to fulfill its
353   responsibilities.
354       (c) Use an invitation to negotiate process for applicants
355   based on minimum requirements established by the Resort Act and
356   rules of the commission.
357       (d) Investigate applicants for a resort license and
358   determine the eligibility of applicants for a resort license and
359   to select from competing applicants the applicant that best
360   serves the interests of the residents of Florida, based on the

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361   potential for economic development presented by the applicant’s
362   proposed investment in infrastructure, such as hotels and other
363   nongaming entertainment facilities, and the applicant’s ability
364   to maximize revenue for the state.
365       (e) Grant a license to the applicant best suited to operate
366   a destination resort that has limited gaming.
367       (f) Establish and collect fees for performing background
368   checks on all applicants for licenses and all persons with whom
369   the commission may contract for the providing of goods or
370   services and for performing, or having performed, tests on
371   equipment and devices to be used in a limited gaming facility.
372       (g) Issue subpoenas for the attendance of witnesses and
373   subpoenas duces tecum for the production of books, records, and
374   other pertinent documents as provided by law, and to administer
375   oaths and affirmations to the witnesses, if, in the judgment of
376   the commission, it is necessary to enforce the Resort Act or
377   commission rules. If a person fails to comply with a subpoena,
378   the commission may petition the circuit court of the county in
379   which the person subpoenaed resides or has his or her principal
380   place of business for an order requiring the subpoenaed person
381   to appear and testify and to produce books, records, and
382   documents as specified in the subpoena. The court may grant
383   legal, equitable, or injunctive relief, which may include, but
384   is not limited to, issuance of a writ of ne exeat or restraint
385   by injunction or appointment of a receiver of any transfer,
386   pledge, assignment, or other disposition of such person’s assets
387   or any concealment, alteration, destruction, or other
388   disposition of subpoenaed books, records, or documents, as the
389   court deems appropriate, until the person subpoenaed has fully

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390   complied with the subpoena and the commission has completed the
391   audit, examination, or investigation. The commission is entitled
392   to the summary procedure provided in s. 51.011, Florida
393   Statutes, and the court shall advance the cause on its calendar.
394   Costs incurred by the commission to obtain an order granting, in
395   whole or in part, such petition for enforcement of a subpoena
396   shall be charged against the subpoenaed person, and failure to
397   comply with such order is a contempt of court.
398       (h) Require or permit a person to file a statement in
399   writing, under oath or otherwise as the commission or its
400   designee requires, as to all the facts and circumstances
401   concerning the matter to be audited, examined, or investigated.
402       (i) Keep accurate and complete records of its proceedings
403   and to certify the records as may be appropriate.
404       (j) Take any other action as may be reasonable or
405   appropriate to enforce the Resort Act and rules adopted by the
406   commission.
407       (k) Apply for injunctive or declaratory relief in a court
408   of competent jurisdiction to enforce the Resort Act and any
409   rules adopted by the commission.
410       (l) Establish field offices, as deemed necessary by the
411   commission.
412       (2) The Department of Law Enforcement and local law
413   enforcement agencies have concurrent jurisdiction to investigate
414   criminal violations of the Resort Act and may investigate any
415   other criminal violation of law occurring at the limited gaming
416   facilities. Such investigations may be conducted in conjunction
417   with the appropriate state attorney.
418       (3)(a) The commission, the Department of Law Enforcement,

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419   and local law enforcement agencies have unrestricted access to
420   the limited gaming facility at all times and shall require of
421   each resort licensee strict compliance with the laws of this
422   state relating to the transaction of such business. The
423   commission, the Department of Law Enforcement, and local law
424   enforcement agencies may:
425       1. Inspect and examine premises where authorized limited
426   gaming devices are offered for play.
427       2. Inspect slot machines, other authorized gaming devices,
428   and related equipment and supplies.
429       (b) In addition, the commission may:
430       1. Collect taxes, assessments, fees, and penalties.
431       2. Deny, revoke, suspend, or place conditions on a licensee
432   who violates any provision of the Resort Act, a rule adopted by
433   the commission, or an order of the commission.
434       (4) The commission must revoke or suspend the license of
435   any person who is no longer qualified or who is found, after
436   receiving a license, to have been unqualified at the time of
437   application for the license.
438       (5) This section does not:
439       (a) Prohibit the Department of Law Enforcement or any law
440   enforcement authority whose jurisdiction includes a resort
441   licensee or a supplier licensee from conducting investigations
442   of criminal activities occurring at the facilities of a resort
443   licensee or supplier licensee;
444       (b) Restrict access to the limited gaming facility by the
445   Department of Law Enforcement or any local law enforcement
446   authority whose jurisdiction includes a resort licensee’s
447   facility; or

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448       (c) Restrict access by the Department of Law Enforcement or
449   a local law enforcement agency to information and records
450   necessary for the investigation of criminal activity which are
451   contained within the facilities of a resort licensee or supplier
452   licensee.
453       Section 7. Rulemaking.—
454       (1) The commission shall adopt all rules necessary to
455   implement, administer, and regulate limited gaming under the
456   Destination Resort Act. The rules must include:
457       (a) The types of limited gaming activities to be conducted
458   and the rules for those games, including any restriction upon
459   the time, place, and structures where limited gaming is
460   authorized.
461       (b) Requirements, procedures, qualifications, and grounds
462   for the issuance, renewal, revocation, suspension, and summary
463   suspension of a resort license, supplier’s license, or
464   occupational license.
465       (c) Requirements for the disclosure of the complete
466   financial interests of licensees and applicants for licenses.
467       (d) Technical requirements and the qualifications that are
468   necessary to receive a license.
469       (e) Procedures to scientifically test and technically
470   evaluate slot machines and other authorized gaming devices for
471   compliance with the Resort Act and the rules adopted by the
472   commission. The commission may contract with an independent
473   testing laboratory to conduct any necessary testing. The
474   independent testing laboratory must have a national reputation
475   for being demonstrably competent and qualified to scientifically
476   test and evaluate slot machines and other authorized gaming

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477   devices. An independent testing laboratory may not be owned or
478   controlled by a licensee. The use of an independent testing
479   laboratory for any purpose related to the conduct of slot
480   machine gaming and other authorized gaming by a resort licensee
481   shall be made from a list of laboratories approved by the
482   commission.
483       (f) Procedures relating to limited gaming revenues,
484   including verifying and accounting for such revenues, auditing,
485   and collecting taxes and fees.
486       (g) Requirements for limited gaming equipment, including
487   the types and specifications of all equipment and devices that
488   may be used in limited gaming facilities.
489       (h) Procedures for regulating, managing, and auditing the
490   operation, financial data, and program information relating to
491   limited gaming which allow the commission and the Department of
492   Law Enforcement to audit the operation, financial data, and
493   program information of a resort licensee, as required by the
494   commission or the Department of Law Enforcement, and provide the
495   commission and the Department of Law Enforcement with the
496   ability to monitor, at any time on a real-time basis, wagering
497   patterns, payouts, tax collection, and compliance with any rules
498   adopted by the commission for the regulation and control of
499   limited gaming. Such continuous and complete access, at any time
500   on a real-time basis, shall include the ability of either the
501   commission or the Department of Law Enforcement to suspend play
502   immediately on particular slot machines or other gaming devices
503   if monitoring of the facilities-based computer system indicates
504   possible tampering or manipulation of those slot machines or
505   gaming devices or the ability to suspend play immediately of the

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506   entire operation if the tampering or manipulation is of the
507   computer system itself. The commission shall notify the
508   Department of Law Enforcement or the Department of Law
509   Enforcement shall notify the commission, as appropriate,
510   whenever there is a suspension of play pursuant this paragraph.
511   The commission and the Department of Law Enforcement shall
512   exchange information that is necessary for, and cooperate in the
513   investigation of, the circumstances requiring suspension of play
514   pursuant to this paragraph.
515       (i) Procedures for requiring each resort licensee at his or
516   her own cost and expense to supply the commission with a bond as
517   required.
518       (j) Procedures for requiring licensees to maintain and to
519   provide to the commission records, data, information, or
520   reports, including financial and income records.
521       (k) Procedures to calculate the payout percentages of slot
522   machines.
523       (l) Minimum standards for security of the facilities,
524   including floor plans, security cameras, and other security
525   equipment.
526       (m) The scope and conditions for investigations and
527   inspections into the conduct of limited gaming.
528       (n) The standards and procedures for the seizure without
529   notice or hearing of gaming equipment, supplies, or books and
530   records for the purpose of examination and inspection.
531       (o) Procedures for requiring resort licensees and supplier
532   licensees to implement and establish drug-testing programs for
533   all employees.
534       (p) Procedures and guidelines for the continuous recording

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535   of all gaming activities at a limited gaming facility. The
536   commission may require a resort licensee to timely provide all
537   or part of the original recordings pursuant to a schedule.
538       (q) The payment of costs incurred by the commission or any
539   other agencies for investigations or background checks or costs
540   associated with testing limited gaming related equipment, which
541   must be paid by an applicant for a license or a licensee.
542       (r) The levying of fines for violations of the Resort Act
543   or any rule adopted by the commission, which fines may not
544   exceed $250,000 per violation arising out of a single
545   transaction.
546       (s) The amount of any application fee or fee to renew an
547   occupational license or a suppliers license.
548       (t) Any other rule necessary to accomplish the purposes of
549   the Resort Act.
550       (2) The commission may at any time adopt emergency rules
551   pursuant to s. 120.54, Florida Statutes. The Legislature finds
552   that such emergency rulemaking power is necessary for the
553   preservation of the rights and welfare of the people in order to
554   provide additional funds to benefit the public. The Legislature
555   further finds that the unique nature of limited gaming
556   operations requires, from time to time, that the commission
557   respond as quickly as is practicable. Therefore, in adopting
558   such emergency rules, the commission need not make the findings
559   required by s. 120.54(4)(a), Florida Statutes. Emergency rules
560   adopted under this section are exempt from s. 120.54(4)(c),
561   Florida Statutes. However, the emergency rules may not remain in
562   effect for more than 180 days except that the commission may
563   renew the emergency rules during the pendency of procedures to

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564   adopt permanent rules addressing the subject of the emergency
565   rules.
566       Section 8. Law enforcement officers.—
567       (1) The commission may employ sworn law enforcement
568   officers to enforce any criminal law, conduct any criminal
569   investigation, or enforce any statute within the jurisdiction of
570   the commission.
571       (2) Each law enforcement officer must meet the
572   qualifications for law enforcement officers under s. 943.13,
573   Florida Statutes, and must be certified as a law enforcement
574   officer by the Department of Law Enforcement. Upon
575   certification, each law enforcement officer is subject to and
576   has the authority provided to law enforcement officers generally
577   under chapter 901, Florida Statutes, and has statewide
578   jurisdiction.
579       (3) Each officer has arrest authority as provided for state
580   law enforcement officers under s. 901.15, Florida Statutes, and
581   full law enforcement powers granted to other officers of this
582   state, including the authority to make arrests, carry firearms,
583   serve court process, and seize contraband and proceeds from
584   illegal activities.
585       (4) Each law enforcement officer of the commission, upon
586   certification under s. 943.1395, Florida Statutes, has the same
587   right and authority to carry arms as do the sheriffs of this
588   state.
589       Section 9. Executive director.—The commission shall appoint
590   or remove the executive director of the commission by a majority
591   vote. An interim executive director shall be appointed within 10
592   days after the initial meeting of the commission.

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593         (1) The executive director:
594         (a) Shall devote full time to the duties of the office;
595         (b) May not hold any other office or employment;
596         (c) Shall perform all duties assigned by the commission;
597   and
598         (d) May hire assistants and employees as necessary to
599   conduct the business of the commission, and consultants
600   necessary for the efficient operation of destination resorts.
601         (2)(a) The executive director may not employ a person who,
602   during the 3 years immediately preceding employment, held a
603   direct or indirect interest in, or was employed by:
604         1. A resort licensee or supplier licensee;
605         2. An applicant for a resort license or an applicant for a
606   similar license in another jurisdiction;
607         3. An entity licensed to operate a gaming facility in
608   another state;
609         4. A pari-mutuel gaming facility licensed to operate in
610   this state; or
611         5. A tribal gaming facility within this state.
612         (b) Notwithstanding paragraph (a), a person may be employed
613   by the commission if the commission finds that the person’s
614   former interest in any licensee will not interfere with the
615   objective discharge of the person’s employment obligations.
616   However, a person may not be employed by the commission if:
617         1. The person’s interest in an applicant, licensee, or
618   tribal facility constituted a controlling interest; or
619         2. The person, or the person’s spouse, parent, child,
620   child’s spouse, or sibling, is a member of the commission, or a
621   director of, or person financially interested in, an applicant

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622   or a licensee.
623       Section 10. Code of ethics.—
624       (1) The commission shall adopt a code of ethics by rule for
625   its members, employees, and agents.
626       (2) A member of the commission or the executive director
627   may not hold a direct or indirect interest in, be employed by,
628   or enter into a contract for service with an applicant or person
629   licensed by the commission for a period of 5 years after the
630   date of termination of the person’s membership on or employment
631   with the commission.
632       (3) An employee of the commission may not acquire a direct
633   or indirect interest in, be employed by, or enter into a
634   contract for services with an applicant or person licensed by
635   the commission for a period of 3 years after the date of
636   termination of the person’s employment with the commission.
637       (4) A commission member or a person employed by the
638   commission may not represent a person or party other than the
639   state before or against the commission for a period of 3 years
640   after the date of termination of the member’s term of office or
641   the employee’s period of employment with the commission.
642       (5) A business entity in which a former commission member,
643   employee, or agent has an interest, or any partner, officer, or
644   employee of that business entity, may not appear before or
645   represent another person before the commission if the former
646   commission member, employee, or agent would be prohibited from
647   doing so. As used in this subsection, the term “business entity”
648   means a corporation, limited liability company, partnership,
649   limited liability partnership association, trust, or other form
650   of legal entity.

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651        (6) A member, employee, or agent of the commission may not
652   engage in political activity or politically related activity
653   during the duration of the person’s appointment or employment.
654   As used in this paragraph, the terms “political activity” or
655   “politically related activity” include:
656        (a) Using the person’s official authority or influence for
657   the purpose of interfering with or affecting the result of an
658   election;
659        (b) Knowingly soliciting, accepting, or receiving political
660   contributions from any person;
661        (c) Running for nomination or as a candidate for election
662   to a partisan political office; or
663        (d) Knowingly soliciting or discouraging the participation
664   in any political activity of any person who is:
665        1. Applying for any compensation, grant, contract, ruling,
666   license, permit, or certificate pending before the commission;
667   or
668        2. The subject of or a participant in an ongoing audit,
669   investigation, or enforcement action being carried out by the
670   commission.
671        (7) A former member, employee, or agent of the commission
672   may appear before the commission as a witness testifying as to
673   factual matters or actions handled by the former member,
674   employee, or agent during his or her tenure with the commission.
675   However, the former member, employee, or agent of the commission
676   may not receive compensation for the appearance other than a
677   standard witness fee and reimbursement for travel expenses as
678   established by statute or rules governing administrative
679   proceedings before the Division of Administrative Hearings.

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680       (8)(a) The executive director must approve outside
681   employment for an employee or agent of the commission.
682       (b) An employee or agent of the commission granted
683   permission for outside employment may not conduct any business
684   or perform any activities, including solicitation, related to
685   outside employment on premises used by the commission or during
686   the employee’s working hours for the commission.
687       (c) As used in this subsection, the term “outside
688   employment” includes, but is not limited to:
689       1. Operating a proprietorship;
690       2. Participating in a partnership or group business
691   enterprise; or
692       3. Performing as a director or corporate officer of any
693   for-profit corporation or banking or credit institution.
694       (9) A member, employee, or agent of the commission may not
695   participate in or wager on any game conducted by any resort
696   licensee or applicant or any affiliate of a licensee or
697   applicant regulated by the commission in this state or in any
698   other jurisdiction, except as required as part of the person’s
699   surveillance, security, or other official duties.
700       Section 11. Disclosures by commissioners, employees, and
701   agents.—
702       (1) COMMISSIONERS.—
703       (a) Each member of the commission shall file a financial
704   disclosure statement pursuant to s. 112.3145, Florida Statutes.
705       (b) Each member must disclose information required by rules
706   of the commission to ensure the integrity of the commission and
707   its work.
708       (c) By January 1 of each year, each member must file a

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709   statement with the commission:
710       1. Affirming that the member, and the member’s spouse,
711   parent, child, or child’s spouse, is not a member of the board
712   of directors of, financially interested in, or employed by an
713   applicant or resort licensee.
714       2. Affirming that the member is in compliance with the
715   Resort Act and the rules of the commission.
716       3. Disclosing any legal or beneficial interest in real
717   property that is or may be directly or indirectly involved with
718   activities or persons regulated by the commission.
719       (d) Each member must disclose involvement with any gaming
720   interest in the 5 years preceding appointment as a member.
721       (2) EMPLOYEES AND AGENTS.—
722       (a) The executive director and each managerial employee and
723   agent, as determined by the commission, shall file a financial
724   disclosure statement pursuant to s. 112.3145, Florida Statutes.
725   All employees and agents must comply with the provisions of
726   chapter 112, Florida Statutes.
727       (b) The executive director and each managerial employee and
728   agent identified by rule of the commission must disclose
729   information required by rules of the commission to ensure the
730   integrity of the commission and its work.
731       (c) By January 31 of each year, each employee and agent of
732   the commission must file a statement with the commission:
733       1. Affirming that the employee, and the employee’s spouse,
734   parent, child, or child’s spouse, is not financially interested
735   in or employed by an applicant or licensee.
736       2. Affirming that the person does not have any financial
737   interest prohibited by laws or rules administered by the

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738   commission.
739       3. Disclosing any legal or beneficial interest in real
740   property that is or may be directly or indirectly involved with
741   activities or persons regulated by the commission.
742       (d) Each employee or agent of the commission must disclose
743   involvement with any gaming interest during the 5 years before
744   employment.
745       (3) CIRCUMSTANCES REQUIRING IMMEDIATE DISCLOSURE.—
746       (a) A member, employee, or agent of the commission who
747   becomes aware that the member, employee, or agent of the
748   commission or his or her spouse, parent, or child is a member of
749   the board of directors of, financially interested in, or
750   employed by an applicant or licensee must immediately provide
751   detailed written notice to the chair.
752       (b) A member, employee, or agent of the commission must
753   immediately provide detailed written notice of the circumstances
754   to the chair if the member, employee, or agent is indicted,
755   charged with, convicted of, pleads guilty or nolo contendere to,
756   or forfeits bail for:
757       1. A misdemeanor involving gambling, dishonesty, theft, or
758   fraud;
759       2. A violation of any law in any state, or a law of the
760   United States or any other jurisdiction, involving gambling,
761   dishonesty, theft, or fraud which substantially corresponds to a
762   misdemeanor in this state; or
763       3. A felony under the laws of this or any other state, or
764   the laws of the United States, or any other jurisdiction.
765       (c) A member, employee, or agent of the commission who is
766   negotiating for an interest in a licensee or an applicant, or is

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767   affiliated with such a person, must immediately provide written
768   notice of the details of the interest to the chair. The member,
769   employee, or agent of the commission may not act on behalf of
770   the commission with respect to that person.
771       (d) A member, employee, or agent of the commission may not
772   enter into negotiations for employment with any person or
773   affiliate of any person who is an applicant, licensee, or an
774   affiliate. If a member, employee, or agent of the commission
775   enters into negotiations for employment in violation of this
776   paragraph or receives an invitation, written or oral, to
777   initiate a discussion concerning employment with any person who
778   is a licensee, applicant, or an affiliate, he or she must
779   immediately provide written notice of the details of any such
780   negotiations or discussions to the chair. The member, employee,
781   or agent of the commission may not take any action on behalf of
782   the commission with respect to that licensee or applicant.
783       (e) A licensee or applicant may not knowingly initiate a
784   negotiation for, or discussion of, employment with a member,
785   employee, or agent of the commission. A licensee or applicant
786   who initiates a negotiation or discussion about employment shall
787   immediately provide written notice of the details of the
788   negotiation or discussion to the chair as soon as that person
789   becomes aware that the negotiation or discussion has been
790   initiated with a member, employee, or agent of the commission.
791       (f) A member, employee, or agent of the commission, or a
792   parent, spouse, sibling, or child of a member, employee, or
793   agent of the commission, may not accept any gift, gratuity,
794   compensation, travel, lodging, or anything of value, directly or
795   indirectly, from a licensee, applicant, or affiliate or

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796   representative of a person regulated by the commission unless
797   the acceptance is permitted under the rules of the commission
798   and conforms with chapter 112, Florida Statutes. A member,
799   employee, or agent of the commission who is offered or receives
800   any gift, gratuity, compensation, travel, lodging, or anything
801   of value, directly or indirectly, from any licensee or an
802   applicant or affiliate or representative of a person regulated
803   by the commission must immediately provide written notice of the
804   details to the chair.
805          (g) A licensee, applicant, or affiliate or representative
806   of an applicant or licensee may not, directly or indirectly,
807   knowingly give or offer to give any gift, gratuity,
808   compensation, travel, lodging, or anything of value to any
809   member, employee, or agent, or to a parent, spouse, sibling, or
810   child of a member, employee, or agent, which the member,
811   employee, or agent is prohibited from accepting under paragraph
812   (f).
813          (h) A member, employee, or agent of the commission may not
814   engage in any conduct that constitutes a conflict of interest,
815   and must immediately advise the chair in writing of the details
816   of any incident or circumstances that would suggest the
817   existence of a conflict of interest with respect to the
818   performance of commission-related work or duty of the member,
819   employee, or agent of the commission.
820          (i) A member, employee, or agent of the commission who is
821   approached and offered a bribe must immediately provide a
822   written account of the details of the incident to the chair and
823   to a law enforcement agency having jurisdiction over the matter.
824          Section 12. Ex parte communications.—

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825       (1) A licensee, applicant, or any affiliate or
826   representative of an applicant or licensee may not engage
827   directly or indirectly in ex parte communications concerning a
828   pending application, license, or enforcement action with a
829   member of the commission or concerning a matter that likely will
830   be pending before the commission. A member of the commission may
831   not engage directly or indirectly in any ex parte communications
832   concerning a pending application, license, or enforcement action
833   with members of the commission, or with a licensee, applicant,
834   or any affiliate or representative of an applicant or licensee,
835   or concerning a matter that likely will be pending before the
836   commission.
837       (2) Any commission member, licensee, applicant, or
838   affiliate or representative of a commission member, licensee, or
839   applicant who receives any ex parte communication in violation
840   of subsection (1), or who is aware of an attempted communication
841   in violation of subsection (1), must immediately report details
842   of the communication or attempted communication in writing to
843   the chair.
844       (3) If a commissioner knowingly receives an ex parte
845   communication relative to a proceeding to which he or she is
846   assigned, he or she must place on the record copies of all
847   written communications received, copies of all written responses
848   to the communications, and a memorandum stating the substance of
849   all oral communications received and all oral responses made,
850   and shall give written notice to all parties to the
851   communication that such matters have been placed on the record.
852   Any party who desires to respond to an ex parte communication
853   may do so. The response must be received by the commission

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854   within 10 days after receiving notice that the ex parte
855   communication has been placed on the record. The commissioner
856   may, if he or she deems it necessary to eliminate the effect of
857   an ex parte communication received by him or her, withdraw from
858   the proceeding potentially impacted by the ex parte
859   communication. After a commissioner withdraws from the
860   proceeding, the chair shall substitute another commissioner for
861   the proceeding if the proceeding was not assigned to the full
862   commission.
863       (4) Any individual who makes an ex parte communication must
864   submit to the commission a written statement describing the
865   nature of such communication, including the name of the person
866   making the communication, the name of the commissioner or
867   commissioners receiving the communication, copies of all written
868   communications made, all written responses to such
869   communications, and a memorandum stating the substance of all
870   oral communications received and all oral responses made. The
871   commission shall place on the record of a proceeding all such
872   communications.
873       (5) A member of the commission who knowingly fails to place
874   on the record any ex parte communications, in violation of this
875   section, within 15 days after the date of the communication is
876   subject to removal and may be assessed a civil penalty not to
877   exceed $5,000.
878       (6) The Commission on Ethics shall receive and investigate
879   sworn complaints of violations of this section pursuant to ss.
880   112.322-112.3241, Florida Statutes.
881       (7) If the Commission on Ethics finds that a member of the
882   commission has violated this section, it shall provide the

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883   Governor with a report of its findings and recommendations. The
884   Governor may enforce the findings and recommendations of the
885   Commission on Ethics pursuant to part III of chapter 112,
886   Florida Statutes.
887       (8) If a commissioner fails or refuses to pay the
888   Commission on Ethics any civil penalties assessed pursuant to
889   this section, the Commission on Ethics may bring an action in
890   any circuit court to enforce such penalty.
891       (9) If, during the course of an investigation by the
892   Commission on Ethics into an alleged violation of this section,
893   allegations are made as to the identity of the person who
894   participated in the ex parte communication, that person must be
895   given notice and an opportunity to participate in the
896   investigation and relevant proceedings to present a defense. If
897   the Commission on Ethics determines that the person participated
898   in the ex parte communication, the person may not appear before
899   the commission or otherwise represent anyone before the
900   commission for 2 years.
901       Section 13. Penalties for misconduct by a commissioner,
902   employee, or agent.—
903       (1) A violation of the Resort Act by a member of the
904   commission may result in disqualification or constitute cause
905   for removal by the Governor or other disciplinary action as
906   determined by the commission.
907       (2) A violation of the Resort Act by an employee or agent
908   of the commission does not require termination of employment or
909   other disciplinary action if:
910       (a) The commission determines that the conduct involved
911   does not violate the purposes the Resort Act; or

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912       (b) There was no intentional action on the part of the
913   employee or agent, contingent on divestment of the financial
914   interest within 30 days after the interest was acquired.
915       (3) Notwithstanding subsection (2), an employee or agent of
916   the commission who violates the Resort Act shall be terminated
917   if a financial interest in a licensee, applicant, or affiliate,
918   or representative of a licensee or applicant, is acquired by:
919       (a) An employee of the commission; or
920       (b) The employee’s or agent’s spouse, parent, or child.
921       (4) A violation the Resort Act does not create a civil
922   cause of action.
923       Section 14. Authorization of limited gaming at destination
924   resorts.—Notwithstanding any other provisions of law, the
925   commission may not award a resort license authorizing limited
926   gaming unless a majority of the electors in a countywide
927   referendum have approved the conduct of limited gaming in the
928   respective county. If limited gaming is authorized through the
929   award of a resort license, the resort licensee may possess slot
930   machines and other authorized gaming devices and conduct limited
931   gaming at the licensed location. Notwithstanding any other
932   provision of law, a person may lawfully participate in
933   authorized games at a facility licensed to possess authorized
934   limited gaming devices and conduct limited gaming or to
935   participate in limited gaming as described in the Resort Act.
936       Section 15. Legislative authority; administration of act.—
937   The regulation of the conduct of limited gaming activity at a
938   resort licensee is preempted to the state and a county,
939   municipality, or other political subdivision of the state may
940   not enact any ordinance relating to limited gaming. Only the

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941   commission and other authorized state agencies shall administer
942   the Resort Act and regulate limited gaming, including limited
943   gaming at resort licensees and the assessment of fees or taxes
944   relating to the conduct of limited gaming.
945       Section 16. Process for awarding destination resort
946   licenses.—
947       (1) The commission shall by rule use an invitation to
948   negotiate process for determining the award of a resort license.
949   The application, review, and issuance procedures for awarding a
950   license shall be by a process in which applicants rely on forms
951   provided by the commission in response to an invitation to
952   negotiate issued by the commission.
953       (2) The commission may, at its discretion, stagger the
954   issuance of invitations to negotiate, the period for review of
955   replies, and the awarding of one or more licenses to conduct
956   limited gaming, provided that the number of licenses does not
957   exceed five destination resort licensees. Invitations to
958   negotiate shall require a response within no less than 6 months
959   of the date after the issuance of the invitation.
960       (3) The commission may specify in its invitation to
961   negotiate the district in which the facility would be located.
962   When determining whether to authorize the destination resort
963   located within a specific county or counties, the commission
964   shall, if practicable, hold a public hearing in such county or
965   counties.
966       (4) The commission shall review all complete replies
967   received pursuant to an invitation to negotiate. The commission
968   may select one or more replies with which to commence
969   negotiations after determining which replies are in the best

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970   interest of the state based on the selection criteria. The
971   commission shall award or deny a destination resort license
972   within 12 months after the deadline for the submission of a
973   reply.
974       Section 17. Criteria for the award of a destination resort
975   license.-
976       (1) The commission may award a resort license to the
977   applicant of an invitation to negotiate which best serves the
978   interests of the residents of Florida. The reply to an
979   invitation to negotiate for a resort license must include an
980   application that demonstrates the applicant’s ability to meet
981   the following minimum criteria:
982       (a) Only one destination resort license may be awarded per
983   district.
984       (b) The applicant must demonstrate a capacity to increase
985   tourism, generate jobs, provide revenue to the local economy,
986   and provide revenue to the General Revenue Fund.
987       (c) The resort must provide a minimum of 1,000 hotel rooms.
988       (d) The resort must contain convention and meeting floor
989   space of at least 500,000 square feet.
990       (e) The area in which the conduct of limited gaming is
991   authorized may constitute no more than 10 percent of the resort
992   development’s total square footage. The resort development’s
993   total square footage is the aggregate of the total square
994   footage of the limited gaming facility, the hotel or hotels,
995   convention space, retail facilities, nongaming entertainment
996   facilities, service centers, and office space or administrative
997   areas.
998       (f) The applicant must demonstrate a history of, or a bona

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999    fide plan for, community involvement or investment in the
1000   community where the resort having a limited gaming facility will
1001   be located.
1002       (g) The applicant must demonstrate the financial ability to
1003   purchase and maintain an adequate surety bond.
1004       (h) The applicant must demonstrate that it has adequate
1005   capitalization to develop, construct, maintain, and operate the
1006   proposed resort and convention center having a limited gaming
1007   facility in accordance with the requirements of the Resort Act
1008   and rules adopted by the commission and to responsibly meet its
1009   secured and unsecured debt obligations in accordance with its
1010   financial and other contractual agreements.
1011       (i) The applicant shall demonstrate the ability to
1012   implement a program to train and employ residents of this state
1013   for jobs that will be available at the destination resort,
1014   including its ability to implement a program for the training of
1015   low-income persons.
1016       (j) The commission may, at its discretion, assess the
1017   quality of the proposed development’s aesthetic appearance in
1018   the context of its potential to provide substantial economic
1019   benefits to the community and the people of Florida, including,
1020   but not limited to its potential to provide substantial
1021   employment opportunities.
1022       (k) The applicant shall demonstrate how it will comply with
1023   state and federal affirmative action guidelines.
1024       (l) The applicant shall demonstrate the ability to generate
1025   substantial gross receipts.
1026       (2) A resort license may be issued only to persons of good
1027   moral character who are at least 21 years of age. A resort

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1028   license may issued to a corporation only if its officers are of
1029   good moral character and at least 21 years of age.
1030       (3) A resort license may not be issued to an applicant if
1031   the applicant, qualifier, or institutional investor:
1032       (a) Has, within the last 10 years, filed for protection
1033   under the Federal Bankruptcy Code or had an involuntary
1034   bankruptcy petition filed against them.
1035       (b) Has, within the last 5 years, been adjudicated by a
1036   court or tribunal for failure to pay income, sales, or gross
1037   receipts tax due and payable under any federal, state, or local
1038   law, after exhaustion of all appeals or administrative remedies.
1039       (c) Has been convicted of a felony under the laws of this
1040   or any other state, or the United States.
1041       (d) Has been convicted of any violation under chapter 817,
1042   Florida Statutes, or under a substantially similar law of
1043   another jurisdiction.
1044       (e) Knowingly submitted false information in the
1045   application for the license.
1046       (f) Is a member or employee of the commission.
1047       (g) Was licensed to own or operate gaming or pari-mutuel
1048   facilities in this state or another jurisdiction and that
1049   license was revoked.
1050       (h) Fails to meet any other criteria for licensure set
1051   forth in the Resort Act.
1052
1053   The term “conviction” includes an adjudication of guilt on a
1054   plea of guilty or nolo contendere or the forfeiture of a bond
1055   when charged with a crime.
1056       Section 18. Application for destination resort license.—

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1057       (1) APPLICATION.—A reply submitted in response to an
1058   invitation to negotiate must include a sworn application in the
1059   format prescribed by the commission. The application must
1060   include the following information:
1061       (a)1. The name, business address, telephone number, social
1062   security number, and, where applicable, the federal tax
1063   identification number of the applicant and each qualifier; and
1064       2. Information, documentation, and assurances concerning
1065   financial background and resources as may be required to
1066   establish the financial stability, integrity, and responsibility
1067   of the applicant. This includes business and personal income and
1068   disbursement schedules, tax returns and other reports filed with
1069   governmental agencies, and business and personal accounting and
1070   check records and ledgers. In addition, each applicant must
1071   provide written authorization for the examination of all bank
1072   accounts and records as may be deemed necessary by the
1073   commission.
1074       (b) The identity and, if applicable, the state of
1075   incorporation or registration of any business in which the
1076   applicant or a qualifier has an equity interest of more than 5
1077   percent. If the applicant or qualifier is a corporation,
1078   partnership, or other business entity, the applicant or
1079   qualifier must identify any other corporation, partnership, or
1080   other business entity in which it has an equity interest of more
1081   5 percent, including, if applicable, the state of incorporation
1082   or registration.
1083       (c) A statement as to whether the applicant or a qualifier
1084   has developed and operated a gaming facility within a
1085   jurisdiction in the United States, including a description of

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1086   the gaming facility, the gaming facility’s gross revenue, and
1087   the amount of revenue the gaming facility has generated for
1088   state and local governments within that jurisdiction.
1089       (d) A statement as to whether the applicant or a qualifier
1090   has been indicted, convicted of, pled guilty or nolo contendere
1091   to, or forfeited bail for any felony or for a misdemeanor
1092   involving gambling, theft, or fraud. The statement must include
1093   the date, the name and location of the court, the arresting
1094   agency, the prosecuting agency, the case caption, the docket
1095   number, the nature of the offense, the disposition of the case,
1096   and, if applicable, the location and length of incarceration.
1097       (e) A statement as to whether the applicant or a qualifier
1098   has ever been granted any license or certificate in any
1099   jurisdiction which has been restricted, suspended, revoked, not
1100   renewed, or otherwise subjected to discipline. The statement
1101   must describe the facts and circumstances concerning that
1102   restriction, suspension, revocation, nonrenewal, or discipline,
1103   including the licensing authority, the date each action was
1104   taken, and an explanation of the circumstances for each
1105   disciplinary action.
1106       (f) A statement as to whether the applicant or qualifier
1107   has, as a principal or a controlling shareholder, within the
1108   last 10 years, filed for protection under the Federal Bankruptcy
1109   Code or had an involuntary bankruptcy petition filed against it.
1110       (g) A statement as to whether the applicant or qualifier
1111   has, within the last 5 years, been adjudicated by a court or
1112   tribunal for failure to pay any income, sales, or gross receipts
1113   tax due and payable under federal, state, or local law, after
1114   exhaustion of all appeals or administrative remedies. This

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1115   statement must identify the amount and type of the tax and the
1116   time periods involved and must describe the resolution of the
1117   nonpayment.
1118       (h) A list of the names and titles of any public officials
1119   or officers of any unit of state government or of the local
1120   government or governments in the county or municipality in which
1121   the proposed resort is to be located, and the spouses, parents,
1122   and children of those public officials or officers, who,
1123   directly or indirectly, own any financial interest in, have any
1124   beneficial interest in, are the creditors of, hold any debt
1125   instrument issued by the applicant or a qualifier, or hold or
1126   have an interest in any contractual or service relationship with
1127   the applicant or qualifier. As used in this paragraph, the terms
1128   “public official” and “officer” do not include a person who
1129   would be listed solely because the person is a member of the
1130   Florida National Guard.
1131       (i) The name and business telephone number of any attorney,
1132   lobbyist, or other person who is representing an applicant
1133   before the commission during the application process.
1134       (j) A description of the applicant’s history of and
1135   proposed plan for community involvement or investment in the
1136   community where the resort having a limited gaming facility
1137   would be located.
1138       (k) A description of the applicant’s proposed resort,
1139   including a description of the economic benefit to the community
1140   in which the facility would be located, the anticipated number
1141   of employees, a statement regarding how the applicant would
1142   comply with federal and state affirmative action guidelines, a
1143   projection of admissions or attendance at the limited gaming

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1144   facility, a projection of gross receipts, and scientific market
1145   research pertaining to the proposed facility, if any.
1146       (l) Proof of a countywide referendum authorizing limited
1147   gaming at a resort in the county. The referendum must be
1148   approved by the electors of the county before the application
1149   deadline established by the commission.
1150       (m) A schedule or timeframe for completing the resort.
1151       (n) A plan for training residents of this state for jobs at
1152   the resort. The job-training plan must provide training to
1153   enable low-income persons to qualify for jobs at the resort.
1154       (o) The identity of each person, association, trust, or
1155   corporation or partnership having a direct or indirect equity
1156   interest in the applicant of greater than 5 percent. If
1157   disclosure of a trust is required under this paragraph, the
1158   names and addresses of the beneficiaries of the trust must also
1159   be disclosed. If the identity of a corporation must be
1160   disclosed, the names and addresses of all stockholders and
1161   directors must also be disclosed. If the identity of a
1162   partnership must be disclosed, the names and addresses of all
1163   partners, both general and limited, must also be disclosed.
1164       (p) A destination resort and limited gaming facility
1165   development plan.
1166       (q) The fingerprints of the all officers or directors of
1167   the applicant and qualifiers, and any persons exercising
1168   operational or managerial control of the applicant, as
1169   determined by rule of the commission, for a criminal history
1170   record check.
1171       (2) DISCRETION TO REQUIRE INFORMATION.—Notwithstanding any
1172   other provision of law, the commission is the sole authority for

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1173   determining the information or documentation that must be
1174   included in an application for a resort license or in an
1175   application to renew a resort license. Such documentation and
1176   information may relate to: demographics, education, work
1177   history, personal background, criminal history, finances,
1178   business information, complaints, inspections, investigations,
1179   discipline, bonding, photographs, performance periods,
1180   reciprocity, local government approvals, supporting
1181   documentation, periodic reporting requirements, and fingerprint
1182   requirements.
1183       (3) DUTY TO SUPPLEMENT APPLICATION.—The application shall
1184   be supplemented as needed to reflect any material change in any
1185   circumstance or condition stated in the application which takes
1186   place between the initial filing of the application and the
1187   final grant or denial of the license. Any submission required to
1188   be in writing may otherwise be required by the commission to be
1189   made by electronic means.
1190       (4) CRIMINAL HISTORY CHECKS.—The commission may contract
1191   with private vendors, or enter into interagency agreements, to
1192   collect electronic fingerprints where fingerprints are required
1193   for licensure or where criminal history record checks are
1194   required.
1195       (5) APPLICATION FEES.—
1196       (a) The application for a resort license must be submitted
1197   along with a nonrefundable application fee of $1 million to be
1198   used by the commission to defray costs associated with the
1199   review and investigation of the application and to conduct a
1200   background investigation of the applicant and each qualifier. If
1201   the cost of the review and investigation exceeds $1 million, the

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1202   applicant must pay the additional amount to the commission
1203   within 30 days after the receipt of a request for an additional
1204   payment.
1205       (b) The application for a destination resort license must
1206   be submitted with a one-time licensing fee of $50 million. If
1207   the commission denies the application, the commission must
1208   refund the licensing fee within 30 days after the denial of the
1209   application. If the applicant withdraws the application after
1210   the application deadline established by the commission, the
1211   commission must refund 80 percent of the licensing fee within 30
1212   days after the application is withdrawn.
1213       Section 19. Incomplete applications.—
1214       (1) An incomplete application for a resort license is
1215   grounds for the denial of the application.
1216       (2)(a) If the commission determines that an application for
1217   a resort license is incomplete, the executive director shall
1218   immediately provide written notice to the applicant of the
1219   incomplete items. The applicant may then request a confidential
1220   informal conference with the executive director or his designee
1221   to discuss the application.
1222       (b) The executive director shall provide the applicant an
1223   extension of 30 days to complete the application following the
1224   date of the informal conference. If the executive director finds
1225   that the application has not been completed within the
1226   extension, the applicant may appeal the finding to the
1227   commission. During an extension or the pendency of an appeal to
1228   the commission, the award of resort licenses in the applicable
1229   district is stayed.
1230       Section 20. Institutional investors as qualifiers.—

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1231       (1) An application for a resort license that has an
1232   institutional investor as a qualifier need not contain
1233   information relating to the institutional investor other than
1234   the identity of the investor and information relating to
1235   qualifications under the Resort Act if the institutional
1236   investor:
1237       (a) Holds less than 5 percent of the equity securities or 5
1238   percent of the debt securities of an applicant or affiliate of
1239   the applicant;
1240       (b) Is a publicly traded corporation; and
1241       (c) Files a certified statement that the institutional
1242   investor does not intend to influence or affect the affairs of
1243   the applicant or an affiliate of the applicant and further
1244   states that its holdings of securities of the applicant or
1245   affiliate were purchased for investment purposes only.
1246
1247   The commission may limit the application requirements as
1248   provided in this subsection for an institutional investor that
1249   is a qualifier and that holds 5 percent or more of the equity or
1250   debt securities of an applicant or affiliate of the applicant
1251   upon a showing of good cause and if the conditions specified in
1252   paragraphs (b) and (c) are satisfied.
1253       (2) An institutional investor that is exempt from the full
1254   application requirements under this section and that
1255   subsequently intends to influence or affect the affairs of the
1256   issuer must first notify the commission of its intent and file
1257   an application containing all of the information that would have
1258   been required of the institutional investor in the application
1259   for a resort license. The commission may deny the application if

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1260   it determines that granting the application will impair the
1261   financial stability of the licensee or impair the ability of the
1262   licensee to comply with its development plans or other plans
1263   submitted to the commission by the applicant or licensee.
1264       (3) An applicant for a license or a resort licensee or
1265   affiliate shall immediately notify the commission of any
1266   information concerning an institutional investor holding its
1267   equity or debt securities which may disqualify an institutional
1268   investor from having a direct or indirect interest in the
1269   applicant or licensee, and the commission may require the
1270   institutional investor to file all information that would have
1271   been required of the institutional investor in the application
1272   for a license.
1273       (4) If the commission finds that an institutional investor
1274   that is a qualifier fails to comply with the requirements of
1275   subsection (1) or, if at any time the commission finds that by
1276   reason of the extent or nature of its holdings an institutional
1277   investor is in a position to exercise a substantial impact upon
1278   the controlling interests of a licensee, the commission may
1279   require the institutional investor to file an application
1280   containing all of information that would have been required of
1281   the institutional investor in the application for a license.
1282       (5) Notwithstanding paragraph (1)(c), an institutional
1283   investor may vote on all matters that are put to the vote of the
1284   outstanding security holders of the applicant or licensee.
1285       Section 21. Lenders and underwriters; exemption as
1286   qualifiers.—A bank, lending institution, or any underwriter in
1287   connection with any bank or lending institution that, in the
1288   ordinary course of business, makes a loan to, or holds a

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1289   security interest in, a licensee or applicant, a supplier
1290   licensee or applicant or its subsidiary, or direct or indirect
1291   parent company of any of the foregoing is not a qualifier and is
1292   not required to be licensed.
1293       Section 22. Conditions for a resort license.—As a condition
1294   to licensure and to maintain continuing authority, a resort
1295   licensee must:
1296       (1) Comply with the Resort Act and the rules of the
1297   commission.
1298       (2) Allow the commission and the Department of Law
1299   Enforcement unrestricted access to and right of inspection of
1300   facilities of a licensee in which any activity relative to the
1301   conduct of gaming is conducted.
1302       (3) Complete the resort in accordance with the plans and
1303   timeframe proposed to the commission in its application, unless
1304   a waiver is granted by the commission.
1305       (4) Ensure that the facilities-based computer system that
1306   the licensee will use for operational and accounting functions
1307   of the facility is specifically structured to facilitate
1308   regulatory oversight. The facilities-based computer system shall
1309   be designed to provide the commission and the Department of Law
1310   Enforcement with the ability to monitor, at any time on a real-
1311   time basis, the wagering patterns, payouts, tax collection, and
1312   such other operations as necessary to determine whether the
1313   facility is in compliance with statutory provisions and rules
1314   adopted by the commission for the regulation and control of
1315   gaming. The commission and the Department of Law Enforcement
1316   shall have complete and continuous access to this system. Such
1317   access shall include the ability of either the commission or the

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1318   Department of Law Enforcement to suspend play immediately on
1319   particular slot machines or gaming devices if monitoring of the
1320   system indicates possible tampering or manipulation of those
1321   slot machines or gaming devices or the ability to suspend play
1322   immediately of the entire operation if the tampering or
1323   manipulation is of the computer system itself. The computer
1324   system shall be reviewed and approved by the commission to
1325   ensure necessary access, security, and functionality. The
1326   commission may adopt rules to provide for the approval process.
1327       (5) Ensure that each game, slot machine, or other gaming
1328   device is protected from manipulation or tampering that may
1329   affect the random probabilities of winning plays. The commission
1330   or the Department of Law Enforcement may suspend play upon
1331   reasonable suspicion of any manipulation or tampering. If play
1332   has been suspended on any game, slot machine, or other gaming
1333   device, the commission or the Department of Law Enforcement may
1334   conduct an examination to determine whether the game, machine,
1335   or other gaming device has been tampered with or manipulated and
1336   whether the game, machine, or other gaming device should be
1337   returned to operation.
1338       (6) Submit a security plan, including the facilities’ floor
1339   plans, the locations of security cameras, and a listing of all
1340   security equipment that is capable of observing and
1341   electronically recording activities being conducted in the
1342   facilities of the licensee. The security plan must meet the
1343   minimum security requirements as determined by the commission
1344   and be implemented before the operation of gaming. The
1345   licensee’s facilities must adhere to the security plan at all
1346   times. Any changes to the security plan must be submitted by the

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1347   licensee to the commission prior to implementation. The
1348   commission shall furnish copies of the security plan and changes
1349   in the plan to the Department of Law Enforcement.
1350          (7) Create and file with the commission a written policy
1351   for:
1352          (a) Creating opportunities to purchase from vendors in this
1353   state, including minority vendors.
1354          (b) Creating opportunities for the employment of residents
1355   of this state, including minority residents.
1356          (c) Ensuring opportunities for obtaining construction
1357   services from minority contractors.
1358          (d) Ensuring that opportunities for employment are offered
1359   on an equal, nondiscriminatory basis.
1360          (e) Training employees on responsible gaming and working
1361   with a compulsive or addictive gambling prevention program.
1362          (f) Implementing a drug-testing program that includes, but
1363   is not limited to, requiring each employee to sign an agreement
1364   that he or she understands that the resort is a drug-free
1365   workplace.
1366          (g) Using the Internet-based job-listing system of the
1367   Agency for Workforce Innovation in advertising employment
1368   opportunities.
1369          (h) Ensuring that the payout percentage of each slot
1370   machine is at least 85 percent.
1371          (8) A resort licensee shall keep and maintain permanent
1372   daily records of its limited gaming operations and shall
1373   maintain such records for a period of not less than 5 years.
1374   These records must include all financial transactions and
1375   contain sufficient detail to determine compliance with the

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1376   requirements of the Resort Act. All records shall be available
1377   for audit and inspection by the commission, the Department of
1378   Law Enforcement, or other law enforcement agencies during the
1379   resort licensee’s regular business hours.
1380       Section 23. Surety bond.—A destination resort licensee
1381   must, at its own cost and expense, before the license is
1382   delivered, give a bond in the penal sum to be determined by the
1383   commission payable to the Governor of the state and her or his
1384   successors in office. The bond must be issued by a surety or
1385   sureties approved by the commission and the Chief Financial
1386   Officer and the bond must be conditioned on the licensee
1387   faithfully making the required payments to the Chief Financial
1388   Officer in her or his capacity as treasurer of the commission,
1389   keeping the licensee’s books and records and make reports as
1390   provided, and conducting its limited gaming activities in
1391   conformity with the Resort Act. The commission shall fix the
1392   amount of the bond at the total amount of annual license fees
1393   and the taxes estimated to become due as determined by the
1394   commission. In lieu of a bond, an applicant or licensee may
1395   deposit with the commission a like amount of funds, a savings
1396   certificate, a certificate of deposit, an investment
1397   certificate, or a letter of credit from a bank, savings bank,
1398   credit union, or savings and loan association situated in this
1399   state which meets the requirements set for that purpose by the
1400   Chief Financial Officer. If security is provided in the form of
1401   a savings certificate, a certificate of deposit, or an
1402   investment certificate, the certificate must state that the
1403   amount is unavailable for withdrawal except upon order of the
1404   commission. The commission may review the bond or other security

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1405   for adequacy and require adjustments, including increasing the
1406   amount of the bond and other security. The commission may adopt
1407   rules to administer this section and establish guidelines for
1408   such bonds or other securities.
1409       Section 24. Conduct of limited gaming.—
1410       (1) Limited gaming may be conducted by a resort licensee,
1411   subject to the following:
1412       (a) The site of the limited gaming facility is limited to
1413   the resort licensee’s site location as approved by the
1414   commission.
1415       (b) Limited gaming may not be conducted by a resort
1416   licensee until the resort is completed according to the proposal
1417   approved by the commission.
1418       (c) The commission’s agents and employees may enter and
1419   inspect a limited gaming facility or other facilities relating
1420   to a resort licensee’s gaming operations at any time for the
1421   purpose of determining whether the licensee is in compliance
1422   with the Resort Act.
1423       (d) A resort licensee may lease or purchase gaming devices,
1424   equipment, or supplies customarily used in conducting gaming
1425   only from a licensed supplier.
1426       (e) A resort licensee may not permit any form of wagering
1427   on games except as permitted by the Resort Act.
1428       (f) A resort licensee may receive wagers only from a person
1429   present in the limited gaming facility.
1430       (g) A resort licensee may not permit wagering using money
1431   or other negotiable currency except for wagering on slot
1432   machines.
1433       (h) A resort licensee may not permit a person who is less

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1434   than 21 years of age to engage in gaming activity or remain in
1435   an area of a limited gaming facility where gaming is being
1436   conducted, except for a limited gaming employee of the resort
1437   licensee who is at least 18 years of age.
1438       (i) A resort licensee may not sell or distribute tokens,
1439   chips, or electronic cards used to make wagers outside the
1440   limited gaming facility. The tokens, chips, or electronic cards
1441   may be purchased by means of an agreement under which the
1442   licensee extends credit to a wagerer. The tokens, chips, or
1443   electronic cards may be used only for the purpose of making
1444   wagers on games within a limited gaming facility.
1445       (j) All gaming activities must be conducted in accordance
1446   with commission rules.
1447       (2) A limited gaming facility may operate 24 hours per day,
1448   every day of the year.
1449       (3) A resort licensee may set the minimum and maximum
1450   wagers on all games.
1451       (4) A resort licensee shall give preference in employment,
1452   reemployment, promotion, and retention to veterans and to the
1453   persons included under s. 295.07(1), Florida Statutes, who
1454   possess the minimum qualifications necessary to perform the
1455   duties of the positions involved.
1456       (5) A resort licensee shall use the E-Verify program, or a
1457   similar program developed under the Immigration Reform and
1458   Control Act of 1986 or the Illegal Immigration Reform and
1459   Immigrant Responsibility Act of 1996, to verify the employment
1460   eligibility of all prospective employees. Applicants for a
1461   resort license must require that all contractors use such a
1462   program to verify the employment eligibility of their

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1463   prospective employees.
1464       (6) The commission shall renew a resort license if:
1465       (a) The licensee has demonstrated an effort to increase
1466   tourism, generate jobs, provide revenue to the local economy,
1467   and provide revenue to the state General Revenue Fund.
1468       (b) The commission has not suspended or revoked the license
1469   of the licensee.
1470       (c) The licensee continues to satisfy all the requirements
1471   of the initial application for licensure.
1472       Section 25. License fee; tax rate; disposition.—
1473       (1) LICENSE FEE.—On the anniversary date of the issuance of
1474   the initial resort license and annually thereafter, the licensee
1475   must pay to the commission a nonrefundable annual license fee of
1476   $5 million. The license shall be renewed annually, unless the
1477   commission has revoked the license for a violation of the Resort
1478   Act or rule of the commission. The license fee shall be
1479   deposited into the Destination Resort Trust Fund to be used by
1480   the commission and the Department of Law Enforcement for
1481   investigations, regulation of limited gaming, and enforcement of
1482   the Resort Act.
1483       (2) GROSS RECEIPTS TAX.—
1484       (a) Each resort licensee shall pay a gross receipts tax on
1485   its gross receipts to the state. Upon completion of the resort
1486   and before limited gaming may be conducted, the resort licensee
1487   must submit proof, as required by the commission, of the total
1488   investment made in the construction of the resort. Upon
1489   submission of this information, the gross receipts tax rate
1490   shall be set as follows:
1491       1. If the total infrastructure investment is $2 billion or

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1492   more, the tax rate shall be 10 percent of the gross receipts.
1493       2. If the total infrastructure investment is at least $1
1494   billion but less than $2 billion, the tax rate shall be 15
1495   percent of the gross receipts.
1496       3. If the total infrastructure investment is less than $1
1497   billion, the tax rate shall be 20 percent of the gross receipts.
1498       (b) The gross receipts tax is in lieu of any other state
1499   taxes on gross or adjusted gross receipts of a resort licensee.
1500       (3) TAX PROCEEDS.—
1501       (a) The gross receipts tax shall be deposited into the
1502   Destination Resort Trust Fund and shall be used to fund the
1503   operating costs of the commission pursuant to appropriations by
1504   the Legislature.
1505       (b) On June 30 of each year, all unappropriated funds in
1506   excess of $5 million shall be deposited as follows:
1507       1. Ninety-five percent shall be deposited into the General
1508   Revenue Fund.
1509       2. Two and 1/2 percent shall be deposited into the Tourism
1510   Promotional Trust Fund for use by the Florida Commission on
1511   Tourism.
1512       3. One and 1/4 percent shall be deposited into the
1513   Employment Security Administration Trust Fund for the benefit of
1514   the school readiness program.
1515       4. One and 1/4 percent shall be deposited into the
1516   Transportation Disadvantaged Trust Fund for use by the
1517   Commission for the Transportation Disadvantaged.
1518       Section 26. Fingerprint requirements.—Any fingerprints
1519   required to be taken under the Resort Act must be taken in a
1520   manner approved by, and shall be submitted electronically by the

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1521   commission to, the Department of Law Enforcement. The Department
1522   of Law Enforcement shall submit the results of the state and
1523   national records check to the commission. The commission shall
1524   consider the results of the state and national records check in
1525   evaluating an application for any license.
1526       (1) The cost of processing fingerprints and conducting a
1527   criminal history record check shall be borne by the applicant.
1528   The Department of Law Enforcement may submit a monthly invoice
1529   to the commission for the cost of processing the fingerprints
1530   submitted.
1531       (2) All fingerprints submitted to the Department of Law
1532   Enforcement pursuant to the Resort Act shall be retained by the
1533   Department of Law Enforcement and entered into the statewide
1534   automated fingerprint identification system as authorized by s.
1535   943.05(2)(b), Florida Statutes, and shall be available for all
1536   purposes and uses authorized for arrest fingerprint cards
1537   entered into the statewide automated fingerprint identification
1538   system pursuant to s. 943.051, Florida Statutes.
1539       (3) The Department of Law Enforcement shall search all
1540   arrest fingerprints received pursuant to s. 943.051, Florida
1541   Statutes, against the fingerprints retained in the statewide
1542   automated fingerprint identification system. Any arrest record
1543   that is identified with the retained fingerprints of a person
1544   subject to the criminal history screening under the Resort Act
1545   shall be reported to the commission. Each licensee shall pay a
1546   fee to the commission for the cost of retention of the
1547   fingerprints and the ongoing searches under this subsection. The
1548   commission shall forward the payment to the Department of Law
1549   Enforcement. The amount of the fee to be imposed for performing

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1550   these searches and the procedures for the retention of licensee
1551   fingerprints shall be as established by rule of the Department
1552   of Law Enforcement. The commission shall inform the Department
1553   of Law Enforcement of any change in the license status of
1554   licensees whose fingerprints are retained under subsection (2).
1555       (4) The commission shall request the Department of Law
1556   Enforcement to forward the fingerprints to the Federal Bureau of
1557   Investigation for a national criminal history records check
1558   every 3 years following issuance of a license. If the
1559   fingerprints of a person who is licensed have not been retained
1560   by the Department of Law Enforcement, the person must file
1561   another set of fingerprints. The commission shall collect the
1562   fees for the cost of the national criminal history record check
1563   under this subsection and shall forward the payment to the
1564   Department of Law Enforcement. The cost of processing
1565   fingerprints and conducting a criminal history record check
1566   under this paragraph shall be borne by the licensee or
1567   applicant. The Department of Law Enforcement may submit an
1568   invoice to the commission for the fingerprints submitted each
1569   month. Under penalty of perjury, each person who is licensed or
1570   who is fingerprinted as required by this section must agree to
1571   inform the commission within 48 hours if he or she is convicted
1572   of or has entered a plea of guilty or nolo contendere to any
1573   disqualifying offense, regardless of adjudication.
1574       Section 27. Compulsive or addictive gambling prevention
1575   program.—
1576       (1) A resort licensee shall offer training to employees on
1577   responsible gaming and shall work with a compulsive or addictive
1578   gambling prevention program to recognize problem gaming

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1579   situations and to implement responsible gaming programs and
1580   practices.
1581       (2) The commission shall, subject to competitive bidding,
1582   contract for services relating to the prevention of compulsive
1583   and addictive gambling. The contract shall provide for an
1584   advertising program to encourage responsible gaming practices
1585   and to publicize a gambling telephone help line. Such
1586   advertisements must be made both publicly and inside the
1587   resort’s limited gaming facility. The terms of any contract for
1588   such services shall include accountability standards that must
1589   be met by any private provider. The failure of any private
1590   provider to meet any material terms of the contract, including
1591   the accountability standards, constitutes a breach of contract
1592   or is grounds for nonrenewal. The commission may consult with
1593   the Department of the Lottery or the Department of Business and
1594   Professional Regulation in the development of the program and
1595   the development and analysis of any procurement for contractual
1596   services for the compulsive or addictive gambling prevention
1597   program.
1598       (3) The compulsive or addictive gambling prevention program
1599   shall be funded from an annual nonrefundable regulatory fee of
1600   $250,000 paid by each resort licensee to the commission.
1601       Section 28. Suppliers’ licenses.—
1602       (1) A person must have a supplier’s license in order to
1603   furnish on a regular or continuing basis to a resort licensee or
1604   an applicant for a resort license gaming equipment, devices, or
1605   supplies or other goods or services regarding the realty,
1606   construction, maintenance, or business of a proposed or existing
1607   resort facility. This requirement includes, but is not limited

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1608   to, junket enterprises, security businesses, manufacturers,
1609   distributors, persons who service gaming devices or equipment,
1610   garbage haulers, maintenance companies, food purveyors, and
1611   construction companies.
1612       (2) An applicant for a supplier’s license must apply to the
1613   commission on forms adopted by the commission by rule. The
1614   licensing fee for the initial and annual renewal of the license
1615   is $5,000.
1616       (3) An applicant for a supplier’s license must include in
1617   the application the fingerprints of the persons identified by
1618   commission rule for the processing of state and national
1619   criminal history record checks.
1620       (4)(a) An applicant for a supplier’s license is not
1621   eligible for licensure if:
1622       1. A person for whom fingerprinting is required under
1623   subsection (3) has been convicted of a felony under the laws of
1624   this or any other state or the United States;
1625       2. The applicant knowingly submitted false information in
1626   the application for a supplier’s license;
1627       3. The applicant is a member of the commission;
1628       4. The applicant is not a natural person and an officer,
1629   director, or managerial employee of that person is a person
1630   defined in subparagraphs 1.-3.;
1631       5. The applicant is not a natural person and an employee of
1632   the applicant participates in the management or operation of
1633   limited gaming authorized under the Resort Act; or
1634       6. The applicant has had a license to own or operate a
1635   resort facility or pari-mutuel facility in this or a similar
1636   license in any other jurisdiction revoked.

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1637       (b) The commission may revoke a supplier’s license at any
1638   time it determines that the licensee no longer satisfies the
1639   eligibility requirements in this subsection.
1640       (5) The commission may deny an application for a supplier’s
1641   license for any person:
1642       (a) Who is not qualified to perform the duties required of
1643   the licensee;
1644       (b) Who fails to disclose information or knowingly submits
1645   false information in the application;
1646       (c) Who has violated the Resort Act or rules of the
1647   commission; or
1648       (d) Who has had a gaming-related license or application
1649   suspended, restricted, revoked, or denied for misconduct in any
1650   other jurisdiction.
1651       (6) A supplier licensee shall:
1652       (a) Furnish to the commission a list of all gaming
1653   equipment, devices, and supplies it offers for sale or lease in
1654   connection with limited gaming authorized in the Resort Act;
1655       (b) Keep books and records documenting the furnishing of
1656   gaming equipment, devices, and supplies to resort licensees
1657   separate and distinct from any other business that the supplier
1658   operates;
1659       (c) File quarterly returns with the commission listing all
1660   sales or leases of gaming equipment, devices, or supplies to
1661   resort licensees;
1662       (d) Permanently affix its name to all gaming equipment,
1663   devices, or supplies sold or leased to licensees; and
1664       (e) File an annual report listing its inventories of gaming
1665   equipment, devices, and supplies.

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1666       (7) All gaming devices, equipment, or supplies furnished by
1667   a licensed supplier must conform to standards adopted by
1668   commission rule.
1669       (8)(a) The commission may suspend, revoke, or restrict the
1670   supplier’s license of a licensee:
1671       1. Who violates the Resort Act or the rules of the
1672   commission; or
1673       2. Who defaults on the payment of any obligation or debt
1674   due to this state or a county.
1675       (b) The commission must revoke the supplier’s license of a
1676   licensee for any cause that, if known to the commission, would
1677   have disqualified the applicant from receiving a license.
1678       (9) A supplier’s licensee may repair gaming equipment,
1679   devices, or supplies in a facility owned or leased by the
1680   licensee.
1681       (10) Gaming devices, equipment, or supplies owned by a
1682   supplier’s licensee which are used in an unauthorized gaming
1683   operation shall be forfeited to the county where the equipment
1684   is found.
1685       (11) The commission may revoke the license or deny the
1686   application for a supplier’s license of a person who fails to
1687   comply with this section.
1688       (12) A person who knowingly makes a false statement on an
1689   application for a supplier’s license commits a misdemeanor of
1690   the first degree, punishable as provided in s. 775.082 or s.
1691   775.083, Florida Statutes.
1692       Section 29. Occupational licenses.—
1693       (1) The Legislature finds that, due to the nature of their
1694   employment, some gaming employees require heightened state

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1695   scrutiny, including licensing and criminal history record
1696   checks.
1697       (2) Any person who desires to be a gaming employee and has
1698   a bona fide offer of employment from a licensed gaming entity
1699   shall apply to the commission for an occupational license. A
1700   person may not be employed as a gaming employee unless that
1701   person holds an appropriate occupational license issued under
1702   this section. The commission may adopt rules to reclassify a
1703   category of nongaming employees or gaming employees upon a
1704   finding that the reclassification is in the public interest and
1705   consistent with the objectives of the Resort Act.
1706       (3) An applicant for an occupational license must apply to
1707   the commission on forms adopted by the commission by rule. An
1708   occupational license is valid for 1 year following issuance. The
1709   application must be accompanied by the licensing fee set by the
1710   commission. The licensing fee may not exceed $50 for an employee
1711   of a resort licensee.
1712       (a) The applicant shall set forth in the application
1713   whether the applicant:
1714       1. Has been issued a gaming-related license in any
1715   jurisdiction.
1716       2. Has been issued a gaming-related license in any other
1717   jurisdiction under any other name and, if so, the name and the
1718   applicant’s age at the time of licensure.
1719       3. Has had a permit or license issued by another
1720   jurisdiction suspended, restricted, or revoked and, if so, for
1721   what period of time.
1722       (b) An applicant for an occupational license must include
1723   his or her fingerprints in the application.

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1724       (4) To be eligible for an occupational license, an
1725   applicant must:
1726       (a) Be at least 21 years of age to perform any function
1727   directly relating to limited gaming by patrons;
1728       (b) Be at least 18 years of age to perform nongaming
1729   functions;
1730       (c) Not have been convicted of a felony or a crime
1731   involving dishonesty or moral turpitude in any jurisdiction; and
1732       (d) Meet the standards for the occupational license as
1733   provided in commission rules.
1734       (5) The commission must deny an application for an
1735   occupational license for any person:
1736       (a) Who is not qualified to perform the duties required of
1737   the licensee;
1738       (b) Who fails to disclose or knowingly submits false
1739   information in the application;
1740       (c) Who has violated the Resort Act; or
1741       (d) Who has had a gaming-related license or application
1742   suspended, restricted, revoked, or denied in any other
1743   jurisdiction.
1744       (6)(a) The commission may suspend, revoke, or restrict the
1745   occupational license of a licensee:
1746       1. Who violates the Resort Act or the rules of the
1747   commission;
1748       2. Who defaults on the payment of any obligation or debt
1749   due to this state or a county; or
1750       3. For any just cause.
1751       (b) The commission shall revoke the occupational license of
1752   a licensee for any cause that, if known to the commission, would

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1753   have disqualified the applicant from receiving a license.
1754       (7) Any training provided for an occupational licensee may
1755   be conducted in the facility of a resort licensee or at a school
1756   with which the resort licensee has entered into an agreement for
1757   that purpose.
1758       (8) A person who knowingly makes a false statement on an
1759   application for an occupational license commits a misdemeanor of
1760   the first degree, punishable as provided in s. 775.082 or s.
1761   775.083, Florida Statutes.
1762       Section 30. Temporary supplier’s license; temporary
1763   occupational license.—
1764       (1) Upon the written request of an applicant for a
1765   supplier’s license or an occupational license, the executive
1766   director shall issue a temporary license to the applicant and
1767   permit the applicant to undertake employment with or provide
1768   gaming equipment, devices, or supplies or other goods or
1769   services to a resort licensee or an applicant for a resort
1770   license if:
1771       (a) The applicant has submitted a completed application, an
1772   application fee, all required disclosure forms, and other
1773   required written documentation and materials;
1774       (b) A preliminary review of the application and the
1775   criminal history record check does not reveal that the applicant
1776   or a person subject to a criminal history record check has been
1777   convicted of a crime that would require denial of the
1778   application;
1779       (c) A deficiency does not appear to exist in the
1780   application which may require denial of the application; and
1781       (d) The applicant has an offer of employment from, or an

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1782   agreement to begin providing gaming devices, equipment, or
1783   supplies or other goods and services to, a resort licensee or an
1784   applicant for a resort license, or the applicant for a temporary
1785   license shows good cause for being granted a temporary license.
1786       (2) A temporary occupational license or supplier’s license
1787   may not be valid for more than 90 days.
1788       (3) An applicant who receives a temporary license may
1789   undertake employment with or supply a resort licensee with
1790   gaming devices, equipment, or supplies or other goods or
1791   services until a license is issued or denied or until the
1792   temporary license expires or is suspended or revoked.
1793       Section 31. Quarterly report.—The commission shall file
1794   quarterly reports with the Governor, the President of the
1795   Senate, and the Speaker of the House of Representatives covering
1796   the previous fiscal quarter. The report must include:
1797       (1) A statement of receipts and disbursements related to
1798   limited gaming;
1799       (2) A summary of disciplinary actions taken by the
1800   commission; and
1801       (3) Any additional information and recommendations that the
1802   commission believes may improve the regulation of limited gaming
1803   or increase the economic benefits of limited gaming to this
1804   state.
1805       Section 32. Hearings by the commission.—
1806       (1) The chair of the commission may participate in any
1807   proceeding pending before the commission when administrative
1808   duties and time permit. In order to distribute the workload and
1809   expedite the commission’s calendar, the chair, in addition to
1810   other administrative duties, may assign the various proceedings

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1811   pending before the commission requiring hearings to two or more
1812   commissioners. Only those commissioners assigned to a proceeding
1813   requiring hearings may participate in the final decision of the
1814   commission as to that proceeding. However, if only two
1815   commissioners are assigned to a proceeding requiring a hearing
1816   and they cannot agree on a final decision, the chair shall cast
1817   the deciding vote for final disposition of the proceeding. If
1818   more than two commissioners are assigned to any proceeding, a
1819   majority of the members assigned shall constitute a quorum and a
1820   majority vote of the members assigned shall be essential to
1821   final commission disposition of those proceedings. If a
1822   commissioner becomes unavailable after assignment to a
1823   particular proceeding, the chair must assign a substitute
1824   commissioner. A petition for reconsideration must be voted upon
1825   by those commissioners participating in the final disposition of
1826   the proceeding.
1827       (2) A majority of the commissioners may determine that the
1828   full commission will sit in any proceeding. Any party to a
1829   proceeding may file a petition requesting that the proceeding be
1830   assigned to the full commission. Within 15 days after receipt by
1831   the commission of any petition, the full commission must dispose
1832   of such petition by majority vote and render a written decision
1833   before the matter may be heard by less than the full commission.
1834       (3) This section does not prohibit a commissioner
1835   designated by the chair from conducting a hearing as provided
1836   under ss. 120.569 and 120.57(1), Florida Statutes, and the rules
1837   of the commission.
1838       Section 33. Resolution of disputes between licensees and
1839   patrons.—

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1840       (1) Whenever a resort licensee has a dispute with a patron
1841   which is not resolved to the satisfaction of the patron and
1842   involves:
1843       (a) Alleged winnings, alleged losses, or the award or
1844   distribution of cash, prizes, benefits, tickets, or any other
1845   item or items in a game, tournament, contest, drawing,
1846   promotion, race, or similar activity or event; or
1847       (b) The manner in which a game, tournament, contest,
1848   drawing, promotion, race, or similar activity or event was
1849   conducted,
1850
1851   the licensee must immediately notify the commission of the
1852   dispute if the amount disputed is $500 or more. If the dispute
1853   involves an amount less than $500, the licensee must immediately
1854   notify the patron of his or her right to file a complaint with
1855   the commission.
1856       (2) Upon notice of a dispute or receipt of a complaint, the
1857   commission shall conduct any investigation it deems necessary
1858   and may order the licensee to make a payment to the patron upon
1859   a finding that the licensee is liable for the disputed amount.
1860   The decision of the commission is effective on the date the
1861   aggrieved party receives notice of the decision. Notice of the
1862   decision is deemed sufficient if it is mailed to the last known
1863   address of the licensee and the patron. The notice is deemed to
1864   have been received by the resort licensee or the patron 5 days
1865   after it is deposited with the United States Postal Service with
1866   postage prepaid.
1867       (3) The failure of a resort licensee to notify the
1868   commission of the dispute or the patron of the right to file a

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1869   complaint is grounds for disciplinary action.
1870       Section 34. Enforcement of credit instruments.—
1871       (1) A credit instrument and the debt that instrument
1872   represents are valid and may be enforced by legal process.
1873       (2) A resort licensee may accept an incomplete credit
1874   instrument that:
1875       (a) Is signed by the patron; and
1876       (b) States the amount of the debt in numbers, and may
1877   complete the instrument as is necessary for the instrument to be
1878   presented for payment.
1879       (3) A resort licensee may accept a credit instrument that
1880   is payable to an affiliate or may complete a credit instrument
1881   payable to an affiliate if the credit instrument otherwise
1882   complies with this section and the records of the affiliate
1883   pertaining to the credit instrument are made available to the
1884   commission upon request.
1885       (4) A resort licensee may accept a credit instrument
1886   before, during, or after the patron incurs the debt. The credit
1887   instrument and the debt that the instrument represents are
1888   enforceable without regard to whether the credit instrument was
1889   accepted before, during, or after the incurring of the debt.
1890       (5) This section does not prohibit the establishment of an
1891   account by a deposit of cash, recognized traveler’s check, or
1892   any other instrument that is equivalent to cash.
1893       (6) If a credit instrument is lost or destroyed, the debt
1894   represented by the credit instrument may be enforced if the
1895   resort licensee or person acting on behalf of the licensee can
1896   prove the existence of the credit instrument.
1897       (7) The existence of a mental disorder in a patron who

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1898   provides a credit instrument to a resort licensee:
1899       (a) Is not a defense in any action by a resort licensee to
1900   enforce a credit instrument or the debt that the credit
1901   instrument represents.
1902       (b) Is not a valid counterclaim in an action to enforce the
1903   credit instrument or the debt that the credit instrument
1904   represents.
1905       (8) The failure of a resort licensee to comply with the
1906   provisions of this section or commission rules does not
1907   invalidate a credit instrument or affect its ability to enforce
1908   the credit instrument or the debt that the credit instrument
1909   represents.
1910       (9) The commission may adopt rules prescribing the
1911   conditions under which a credit instrument may be redeemed or
1912   presented to a bank or credit union for collection or payment.
1913       Section 35. Voluntary self-exclusion from a limited gaming
1914   facility.—
1915       (1) A person may request that he or she be excluded from
1916   limited gaming facilities in this state by personally submitting
1917   a Request for Voluntary Self-exclusion from Limited Gaming
1918   Facilities Form to the commission. The form must require the
1919   person requesting exclusion to:
1920       (a) State his or her:
1921       1. Name, including any aliases or nicknames;
1922       2. Date of birth;
1923       3. Current residential address;
1924       4. Telephone number;
1925       5. Social security number; and
1926       6. Physical description, including height, weight, gender,

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1927   hair color, eye color, and any other physical characteristic
1928   that may assist in the identification of the person.
1929
1930   A self-excluded person must update the information in this
1931   paragraph on forms supplied by the commission within 30 days
1932   after any change.
1933       (b) Select one of the following as the duration of the
1934   self-exclusion:
1935       1. One year.
1936       2. Five years.
1937       3. Lifetime.
1938       (c) Execute a release in which the person:
1939       1. Acknowledges that the request for exclusion has been
1940   made voluntarily.
1941       2. Certifies that the information provided in the request
1942   for self-exclusion is true and correct.
1943       3. Acknowledges that the individual requesting self-
1944   exclusion is a problem gambler.
1945       4. Acknowledges that a person requesting a lifetime
1946   exclusion will not be removed from the self-exclusion list and
1947   that a person requesting a 1-year or 5-year exclusion will
1948   remain on the self-exclusion list until a request for removal is
1949   approved by the commission.
1950       5. Acknowledges that, if the individual is discovered on
1951   the gaming floor of a limited gaming facility, the individual
1952   may be removed and may be arrested and prosecuted for criminal
1953   trespass.
1954       6. Releases, indemnifies, holds harmless, and forever
1955   discharges the state, commission, and all licensee from any

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1956   claims, damages, losses, expenses, or liability arising out of,
1957   by reason of or relating to the self-excluded person or to any
1958   other party for any harm, monetary or otherwise, which may arise
1959   as a result of one or more of the following:
1960       a. The failure of a resort licensee to withhold gaming
1961   privileges from or restore gaming privileges to a self-excluded
1962   person.
1963       b. Permitting or prohibiting a self-excluded person from
1964   engaging in gaming activity in a limited gaming facility.
1965       (2) A person submitting a self-exclusion request must
1966   present to the commission a government-issued form of
1967   identification containing the person’s signature.
1968       (3) The commission shall take a photograph of a person
1969   requesting self-exclusion at the time the person submits a
1970   request for self-exclusion.
1971       Section 36. Section 849.15, Florida Statutes, is amended to
1972   read:
1973       849.15 Manufacture, sale, possession, etc., of coin-
1974   operated devices prohibited.—
1975       (1) It is unlawful:
1976       (a) To manufacture, own, store, keep, possess, sell, rent,
1977   lease, let on shares, lend or give away, transport, or expose
1978   for sale or lease, or to offer to sell, rent, lease, let on
1979   shares, lend or give away, or permit the operation of, or for
1980   any person to permit to be placed, maintained, or used or kept
1981   in any room, space, or building owned, leased or occupied by the
1982   person or under the person’s management or control, any slot
1983   machine or device or any part thereof; or
1984       (b) To make or to permit to be made with any person any

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1985   agreement with reference to any slot machine or device, pursuant
1986   to which the user thereof, as a result of any element of chance
1987   or other outcome unpredictable to him or her, may become
1988   entitled to receive any money, credit, allowance, or thing of
1989   value or additional chance or right to use such machine or
1990   device, or to receive any check, slug, token or memorandum
1991   entitling the holder to receive any money, credit, allowance or
1992   thing of value.
1993       (2) Pursuant to section 2 of that chapter of the Congress
1994   of the United States entitled “An act to prohibit transportation
1995   of gaming devices in interstate and foreign commerce,” approved
1996   January 2, 1951, being ch. 1194, 64 Stat. 1134, and also
1997   designated as 15 U.S.C. ss. 1171-1177, the State of Florida,
1998   acting by and through the duly elected and qualified members of
1999   its Legislature, does hereby in this section, and in accordance
2000   with and in compliance with the provisions of section 2 of such
2001   chapter of Congress, declare and proclaim that any county of the
2002   State of Florida within which slot machine gaming is authorized
2003   pursuant to the Destination Resort Act, sections 3 through 35 of
2004   this act, or chapter 551 is exempt from the provisions of
2005   section 2 of that chapter of the Congress of the United States
2006   entitled “An act to prohibit transportation of gaming devices in
2007   interstate and foreign commerce,” designated as 15 U.S.C. ss.
2008   1171-1177, approved January 2, 1951. All shipments of gaming
2009   devices, including slot machines, into any county of this state
2010   within which slot machine gaming is authorized pursuant to the
2011   Destination Resort Act, sections 3 through 35 of this act, or
2012   chapter 551 and the registering, recording, and labeling of
2013   which have been duly performed by the manufacturer or

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2014   distributor thereof in accordance with sections 3 and 4 of that
2015   chapter of the Congress of the United States entitled “An act to
2016   prohibit transportation of gaming devices in interstate and
2017   foreign commerce,” approved January 2, 1951, being ch. 1194, 64
2018   Stat. 1134, and also designated as 15 U.S.C. ss. 1171-1177,
2019   shall be deemed legal shipments thereof into this state provided
2020   the destination of such shipments is an eligible facility as
2021   defined in s. 551.102, or the facility of a slot machine
2022   manufacturer or slot machine distributor as provided in s.
2023   551.109(2)(a), or the facility of a resort licensee or supplier
2024   licensee under the Destination Resort Act, sections 3 through 35
2025   of this act.
2026       Section 37. Section 849.231, Florida Statutes, is amended
2027   to read:
2028       849.231 Gambling devices; manufacture, sale, purchase or
2029   possession unlawful.—
2030       (1) Except in instances when the following described
2031   implements or apparatus are being held or transported by
2032   authorized persons for the purpose of destruction, as
2033   hereinafter provided, and except in instances when the following
2034   described instruments or apparatus are being held, sold,
2035   transported, or manufactured by persons who have registered with
2036   the United States Government pursuant to the provisions of Title
2037   15 of the United States Code, ss. 1171 et seq., as amended, so
2038   long as the described implements or apparatus are not displayed
2039   to the general public, sold for use in Florida, or held or
2040   manufactured in contravention of the requirements of 15 U.S.C.
2041   ss. 1171 et seq., it shall be unlawful for any person to
2042   manufacture, sell, transport, offer for sale, purchase, own, or

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2043   have in his or her possession any roulette wheel or table, faro
2044   layout, crap table or layout, chemin de fer table or layout,
2045   chuck-a-luck wheel, bird cage such as used for gambling, bolita
2046   balls, chips with house markings, or any other device,
2047   implement, apparatus, or paraphernalia ordinarily or commonly
2048   used or designed to be used in the operation of gambling houses
2049   or establishments, excepting ordinary dice and playing cards.
2050       (2) In addition to any other penalties provided for the
2051   violation of this section, any occupational license held by a
2052   person found guilty of violating this section shall be suspended
2053   for a period not to exceed 5 years.
2054       (3) This section and s. 849.05 do not apply to a vessel of
2055   foreign registry or a vessel operated under the authority of a
2056   country except the United States, while docked in this state or
2057   transiting in the territorial waters of this state.
2058       (4) This section does not apply to limited gaming as
2059   authorized by the Destination Resort Act, sections 3 through 35
2060   of this act.
2061       Section 38. Section 849.25, Florida Statutes, is amended to
2062   read:
2063       849.25 “Bookmaking” defined; penalties; exceptions.—
2064       (1)(a) The term “bookmaking” means the act of taking or
2065   receiving, while engaged in the business or profession of
2066   gambling, any bet or wager upon the result of any trial or
2067   contest of skill, speed, power, or endurance of human, beast,
2068   fowl, motor vehicle, or mechanical apparatus or upon the result
2069   of any chance, casualty, unknown, or contingent event
2070   whatsoever.
2071       (b) The following factors shall be considered in making a

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2072   determination that a person has engaged in the offense of
2073   bookmaking:
2074          1. Taking advantage of betting odds created to produce a
2075   profit for the bookmaker or charging a percentage on accepted
2076   wagers.
2077          2. Placing all or part of accepted wagers with other
2078   bookmakers to reduce the chance of financial loss.
2079          3. Taking or receiving more than five wagers in any single
2080   day.
2081          4. Taking or receiving wagers totaling more than $500 in
2082   any single day, or more than $1,500 in any single week.
2083          5. Engaging in a common scheme with two or more persons to
2084   take or receive wagers.
2085          6. Taking or receiving wagers on both sides on a contest at
2086   the identical point spread.
2087          7. Any other factor relevant to establishing that the
2088   operating procedures of such person are commercial in nature.
2089          (c) The existence of any two factors listed in paragraph
2090   (b) may constitute prima facie evidence of a commercial
2091   bookmaking operation.
2092          (2) Any person who engages in bookmaking commits shall be
2093   guilty of a felony of the third degree, punishable as provided
2094   in s. 775.082, s. 775.083, or s. 775.084. Notwithstanding the
2095   provisions of s. 948.01, any person convicted under the
2096   provisions of this subsection shall not have adjudication of
2097   guilt suspended, deferred, or withheld.
2098          (3) Any person who has been convicted of bookmaking and
2099   thereafter violates the provisions of this section commits shall
2100   be guilty of a felony of the second degree, punishable as

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2101   provided in s. 775.082, s. 775.083, or s. 775.084.
2102   Notwithstanding the provisions of s. 948.01, any person
2103   convicted under the provisions of this subsection shall not have
2104   adjudication of guilt suspended, deferred, or withheld.
2105       (4) Notwithstanding the provisions of s. 777.04, any person
2106   who is guilty of conspiracy to commit bookmaking is shall be
2107   subject to the penalties imposed by subsections (2) and (3).
2108       (5) This section does shall not apply to pari-mutuel
2109   wagering in Florida as authorized under chapter 550.
2110       (6) This section does shall not apply to any prosecutions
2111   filed and pending at the time of the passage hereof, but all
2112   such cases shall be disposed of under existing laws at the time
2113   of the institution of such prosecutions.
2114       (7) This section does not apply to limited gaming as
2115   authorized in the Destination Resort Act, sections 3 through 35
2116   of this act.
2117       Section 39. This act shall take effect July 1, 2011.
2118
2119   ================= T I T L E   A M E N D M E N T ================
2120   And the title is amended as follows:
2121       Delete everything before the enacting clause
2122   and insert:
2123                           A bill to be entitled
2124       An act relating to destination resorts; amending s.
2125       20.21, F.S.; creating the Destination Resort
2126       Commission within the Department of Revenue; amending
2127       s. 120.80, F.S.; exempting the Destination Resort
2128       Commission from specified provisions of the
2129       Administrative Procedure Act; creating the Destination

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2130       Resort Act; providing definitions; providing that the
2131       Destination Resort Commission is a separate budget
2132       entity from the Department of Revenue; providing for
2133       the appointment and qualifications of members of the
2134       commission; providing for the selection of the chair
2135       and vice chair of the commission; providing that the
2136       chair is the administrative head of the commission;
2137       specifying the responsibilities of the chair;
2138       providing that the commission serves as the agency
2139       head for purposes of the Administrative Procedure Act;
2140       providing that the executive director of the
2141       commission may serve as the agency head for purposes
2142       of final agency action within the authority delegated
2143       by the commission; specifying the powers of the
2144       commission, including the power to authorize limited
2145       gaming at up to five destination resorts, conduct
2146       investigations, issue subpoenas, take enforcement
2147       actions, and create an invitation to negotiate process
2148       to evaluate applications for a resort license;
2149       specifying the jurisdiction of the commission, the
2150       Department of Law Enforcement, and local law
2151       enforcement agencies to investigate criminal
2152       violations relating to limited gaming; requiring the
2153       commission to revoke or suspend the licensee of a
2154       person who was unqualified at the time of licensure or
2155       who is no longer qualified to be licensed; authorizing
2156       the commission to adopt rules relating to the types of
2157       gaming authorized, requirements for the issuance,
2158       renewal, revocation, and suspension of licenses, the

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2159       disclosure of financial interests, procedures to test
2160       gaming equipment, procedures to verify gaming revenues
2161       and the collection of taxes, requirements for gaming
2162       equipment, procedures relating to a facilities-based
2163       computer system, bond requirements of resort
2164       licensees, the maintenance of records, procedures to
2165       calculate the payout percentages of slot machines,
2166       security standards, the scope and conditions for
2167       investigations and inspections into the conduct of
2168       limited gaming, the seizure of gaming equipment and
2169       records without notice or a warrant, employee drug-
2170       testing programs, and the payment of costs, fines, and
2171       application fees; authorizing the commission to adopt
2172       emergency rules; exempting the rules from specified
2173       provisions of the Administrative Procedure Act;
2174       authorizing the commission to employ law enforcement
2175       officers; specifying the qualifications and powers of
2176       law enforcement officers employed by the commission;
2177       providing for the appointment, qualifications, and
2178       powers of the executive director of the commission;
2179       specifying persons who may not be employed by the
2180       commission; requiring the commission to adopt a code
2181       of ethics for its employees, members, and agents;
2182       specifying prohibited financial interests and
2183       relationships; imposing postemployment restrictions on
2184       members, employees, and agents of the commission;
2185       restricting the political activities of members,
2186       employees, and agents of the commission; prohibiting
2187       commissioners, employees, and agents of the commission

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2188       from wagering under certain circumstances; requiring
2189       members, employees, and agents of the commission to
2190       annually disclose certain financial interests;
2191       specifying conditions under which members, employees,
2192       and agents of the commission must immediately disclose
2193       certain financial matters, criminal matters,
2194       employment negotiations, the offering or acceptance of
2195       gifts, and the offering of a bribe; prohibiting ex
2196       parte communications between applicants or licensees
2197       and members of the commission; requiring parties to an
2198       ex parte communication to disclose the substance of
2199       the communication; authorizing the imposition of a
2200       fine on a member of the commission who fails to
2201       disclose an ex parte communication; authorizing the
2202       Commission on Ethics to investigate complaints
2203       alleging an ex parte communication; requiring the
2204       Commission on Ethics to provide a report of its
2205       findings to the Governor if it finds that a
2206       commissioner violated the prohibitions on ex parte
2207       communications; authorizing the Commission on Ethics
2208       to bring an action against a commissioner to collect
2209       any penalties assessed; prohibiting a person who
2210       participated in an ex parte communication from
2211       appearing or representing a person before the
2212       commission for a certain time; specifying grounds for
2213       removal or termination of employment of commissioners
2214       and employees who violate the laws regulating limited
2215       gaming; requiring a referendum in the county where a
2216       destination resort is to be located as a prerequisite

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2217       to the conduct of limited gaming activities;
2218       preempting the regulation of limited gaming at a
2219       destination resort to the state; requiring the
2220       commission to develop an invitation to negotiate
2221       process to award a resort license; specifying the
2222       minimum criteria that an applicant must meet to be
2223       awarded a destination resort license; specifying
2224       events that disqualify an applicant from eligibility
2225       for a resort license; specifying the information that
2226       must be on or included with an application for a
2227       resort license; specifying the amount of a
2228       nonrefundable application fee for a resort license to
2229       be used to defray the costs of an investigation of the
2230       applicant; authorizing the imposition of additional
2231       fees if the amount of the application fee is
2232       insufficient to cover the costs of the investigation;
2233       requiring the payment of a one-time licensing fee to
2234       be submitted along with an application for a resort
2235       license; requiring the executive director to notify an
2236       applicant for a resort license if the application is
2237       incomplete; authorizing the applicant to have an
2238       informal conference with the executive director to
2239       discuss an incomplete application; authorizing the
2240       executive director to grant an extension to complete
2241       an application; providing for the stay of the award of
2242       a resort license during an extension or the appeal to
2243       the commission of a finding by the executive director
2244       that an application is incomplete; exempting an
2245       institutional investor that is a qualifier for a

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2246       resort licensee from certain application requirements
2247       under certain circumstances; requiring notice to the
2248       commission of any changes that may require a person to
2249       comply with the full application requirements;
2250       exempting lending institutions and underwriters from
2251       licensing requirements as a qualifier under certain
2252       circumstances; specifying conditions for a resort
2253       licensee to maintain licensure; requiring that the
2254       licensee post a bond; specifying conditions for the
2255       conduct of limited gaming by a resort licensee;
2256       requiring the commission to renew the license of a
2257       resort licensee if the licensee satisfies specified
2258       conditions; specifying an annual fee for the renewal
2259       of a resort license; imposing a tiered gross receipts
2260       tax based on the amount of a resort licensee’s
2261       infrastructure costs; providing for the deposit of the
2262       tax into the Destination Resort Trust Fund; providing
2263       for certain unappropriated funds in the Destination
2264       Resort Trust Fund to be deposited into the General
2265       Revenue Fund, the Tourism Promotional Trust Fund, the
2266       Employment Security Administration Trust Fund, and the
2267       Transportation Disadvantaged Trust Fund; providing for
2268       the proceeds of the gross receipts tax to fund the
2269       operations of the commission; providing procedures for
2270       the submission and processing of fingerprints of
2271       certain persons regulated by the commission; providing
2272       that the cost of processing the fingerprints shall be
2273       borne by a licensee or applicant; requiring a person
2274       to report to the commission certain pleas and

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       Bill No. SB 2050




                               Ì609550#Î609550


2275       convictions for disqualifying offenses; requiring a
2276       resort licensee to train its employees about
2277       compulsive gambling; requiring a resort licensee to
2278       work with a compulsive gambling prevention program;
2279       requiring the commission to contract for services
2280       relating to the prevention of compulsive gambling;
2281       providing for the commission’s compulsive gambling
2282       prevention program to be funded from a regulatory fee
2283       imposed on resort licensees; requiring a person to
2284       have a supplier’s license to furnish certain goods and
2285       services to a resort licensee; specifying the amount
2286       of the application fee for a supplier’s license;
2287       specifying persons who are disqualified from receiving
2288       a supplier’s license; specifying circumstances under
2289       which the commission may revoke a supplier’s license;
2290       authorizing the commission to adopt rules relating to
2291       the licensing of suppliers; requiring a supplier
2292       licensee to furnish a list of gaming devices and
2293       equipment to the commission, maintain records, file
2294       quarterly returns, and affix its name to the gaming
2295       equipment and supplies that it offers; requiring that
2296       the supplier licensee annually report its inventory to
2297       the commission; authorizing the commission to revoke a
2298       supplier’s license under certain circumstances;
2299       providing that the equipment of a supplier’s licensee
2300       which is used in unauthorized gaming will be forfeited
2301       to the county where the equipment is found; imposing a
2302       criminal penalty on a person who knowingly makes a
2303       false statement on an application for a supplier’s

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       Bill No. SB 2050




                               Ì609550#Î609550


2304       license; requiring a person to have an occupational
2305       license to serve as a limited gaming employee of a
2306       resort licensee; requiring a person to apply to the
2307       commission for an occupational license and pay an
2308       application fee; specifying information that an
2309       applicant must include in an application for an
2310       occupational license; specifying grounds for the
2311       commission to deny an application for an occupational
2312       license; imposing a criminal penalty on a person who
2313       knowingly makes a false statement on an application
2314       for an occupational license; authorizing the executive
2315       director of the commission to issue a temporary
2316       occupational or temporary supplier’s license under
2317       certain circumstances; requiring the commission to
2318       file quarterly reports with the Governor, the
2319       President of the Senate, and the Speaker of the House
2320       of Representatives; specifying procedures for the
2321       conduct of proceedings by the commission; authorizing
2322       the chair of the commission to assign a proceeding to
2323       less than the full commission; providing procedures
2324       for the resolution of certain disputes between a
2325       resort licensee and a patron; requiring a resort
2326       licensee to notify the commission of certain disputes
2327       with a patron involving amounts of $500 or more;
2328       requiring a resort licensee to notify a patron of the
2329       right to file a complaint with the commission
2330       regarding certain disputes of an amount less than
2331       $500; authorizing the commission to investigate
2332       disputes and to order a resort licensee to make a

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                               Ì609550#Î609550


2333       payment to a patron; providing for the enforcement of
2334       credit instruments; authorizing a resort licensee to
2335       accept an incomplete credit instrument and to complete
2336       incomplete credit instruments under certain
2337       circumstances; providing that existence of a mental
2338       disorder is not a defense or a valid counterclaim in
2339       an action to enforce a credit instrument; authorizing
2340       the commission to adopt rules prescribing the
2341       conditions under which a credit instrument may be
2342       presented to a bank; providing that a resort licensee
2343       has the right to exclude a person from its limited
2344       gaming facility; authorizing a person to request that
2345       the commission exclude her or him from limited gaming
2346       facilities; specifying the required contents of the
2347       request; providing that a self-excluded person who is
2348       found on a gaming floor may be arrested and prosecuted
2349       for criminal trespass; providing that a self-excluded
2350       person holds harmless the commission and licensees
2351       from claims for losses and damages under certain
2352       circumstances; amending s. 849.15, F.S.; authorizing
2353       slot machine gaming in a resort licensee and the
2354       transportation of slot machines pursuant to federal
2355       law; amending s. 849.231, F.S.; providing that a
2356       prohibition on gambling devices does not apply to
2357       limited gaming as authorized in the act; amending s.
2358       849.25, F.S.; providing that a prohibition on gaming
2359       does not apply to limited gaming as authorized in the
2360       act; providing an effective date.



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    Florida Senate - 2011                         COMMITTEE AMENDMENT
    Bill No. SB 2050




                            Ì8544649Î854464


                            LEGISLATIVE ACTION
                  Senate            .              House
                                    .
                                    .
                                    .
                                    .
                                    .




    The Committee on Commerce and Tourism (Gaetz) recommended the
    following:


1       Senate Amendment to Amendment (609550)
2
3       Delete lines 106 - 107
4   and insert:
5   Flagler, Marion, Volusia, and Hernando Counties.




                               Page 1 of 1
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    Florida Senate - 2011                         COMMITTEE AMENDMENT
    Bill No. SB 2050




                            Ì681052zÎ681052


                            LEGISLATIVE ACTION
                 Senate             .              House
                                    .
                                    .
                                    .
                                    .
                                    .




    The Committee on Commerce and Tourism (Gaetz) recommended the
    following:


1       Senate Amendment to Amendment (609550)
2
3       Delete lines 987 - 989.




                               Page 1 of 1
    4/5/2011 8:02:04 AM                                    577-03825-11
     Florida Senate - 2011                         COMMITTEE AMENDMENT
     Bill No. SB 2050




                             Ì789614<Î789614


                             LEGISLATIVE ACTION
                   Senate            .              House
                                     .
                                     .
                                     .
                                     .
                                     .




     The Committee on Commerce and Tourism (Gaetz) recommended the
     following:


1        Senate Amendment to Amendment (609550)
2
3        Delete lines 1146 - 1149
4    and insert:
5        (l) Proof that the electors of the county in a countywide
6    referendum have approved limited gaming at a resort in the
7    county before the application deadline has been established by
8    the commission for any district. However, a referendum is not
9    required in any county where slot machine gaming as defined in
10   s. 551.102(8) is currently conducted within a county.




                                Page 1 of 1
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     Florida Senate - 2011                         COMMITTEE AMENDMENT
     Bill No. SB 2050




                             Ì838428EÎ838428


                             LEGISLATIVE ACTION
                  Senate             .              House
                                     .
                                     .
                                     .
                                     .
                                     .




     The Committee on Commerce and Tourism (Gaetz) recommended the
     following:


1        Senate Amendment to Amendment (609550) (with title
2    amendment)
3
4        Between lines 1970 and 1971
5    insert:
6        Section 36. Slot machine licensees.—Notwithstanding any law
7    to the contrary, if a resort licensee receives final
8    authorization to conduct limited gaming activities in Miami-Dade
9    County or Broward County, a pari-mutuel facility licensed to
10   operate slot machine gaming under s. 551.104, Florida Statutes,
11   may conduct all games, including such games identified in the
12   Destination Resort Act as limited gaming, during the same hours

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     Florida Senate - 2011                           COMMITTEE AMENDMENT
     Bill No. SB 2050




                             Ì838428EÎ838428


13   of operation and limits of wagering authorized for a resort
14   licensee. However, before conducting limited gaming, such
15   licensee is subject to the provisions of subsection (3) of
16   section 17. The facility shall pay the same tax on gross
17   receipts as the resort licensee located within Miami-Dade County
18   or Broward County. For purposes of this section, the term “final
19   authorization” means the anticipated opening date of the resort
20   casino, or the actual opening date, whichever occurs first.
21
22   ================= T I T L E    A M E N D M E N T ================
23   And the title is amended as follows:
24       Delete line 2352
25   and insert:
26       circumstances; allowing pari-mutuel facilities to
27       conduct all games under certain conditions when a
28       resort license to conduct limited gaming activities is
29       authorized in Miami-Dade County or Broward County;
30       amending s. 849.15, F.S.; authorizing




                                   Page 2 of 2
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     Florida Senate - 2011                           COMMITTEE AMENDMENT
     Bill No. SB 2050




                             Ì9613922Î961392


                             LEGISLATIVE ACTION
                   Senate              .              House
                                       .
                                       .
                                       .
                                       .
                                       .




     The Committee on Commerce and Tourism (Gaetz) recommended the
     following:


1        Senate Amendment to Amendment (609550) (with title
2    amendment)
3
4        Delete lines 2058 - 2060
5    and insert:
6        (4) This section does not apply to slot machine licensees
7    authorized under chapter 551 or limited gaming authorized by
8    sections 3 through 36 of this act.
9
10   ================= T I T L E    A M E N D M E N T ================
11   And the title is amended as follows:
12       Between lines 2356 and 2357

                                   Page 1 of 2
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     Florida Senate - 2011                        COMMITTEE AMENDMENT
     Bill No. SB 2050




                             Ì9613922Î961392


13   insert:
14       slot machine licenses authorized under state law and




                               Page 2 of 2
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     Florida Senate - 2011                         COMMITTEE AMENDMENT
     Bill No. SB 2050




                             Ì877056=Î877056


                             LEGISLATIVE ACTION
                  Senate             .              House
                                     .
                                     .
                                     .
                                     .
                                     .




     The Committee on Commerce and Tourism (Gaetz) recommended the
     following:


1        Senate Amendment to Amendment (609550) (with title
2    amendment)
3
4        Between lines 2116 and 2117
5    insert:
6        Section 39. Effective July 1, 2013, all powers, duties,
7    functions, records, personnel, property, and unexpended balances
8    of appropriations, allocations, or other funds for the
9    administration of chapter 551, Florida Statutes, are transferred
10   intact by a type two transfer, as defined in s. 20.06(2),
11   Florida Statutes, from the Division of Pari-Mutuel Wagering of
12   the Department of Business and Professional Regulation to the

                                Page 1 of 2
     4/5/2011 8:06:15 AM                                    577-03829-11
     Florida Senate - 2011                           COMMITTEE AMENDMENT
     Bill No. SB 2050




                             Ì877056=Î877056


13   Destination Resort Commission.
14       Section 40. If any provision of this act or its application
15   to any person or circumstance is held invalid, the invalidity
16   does not affect other provisions or applications of this act
17   which can be given effect without the invalid provision or
18   application, and to this end the provisions of this act are
19   severable.
20
21   ================= T I T L E    A M E N D M E N T ================
22   And the title is amended as follows:
23       Delete line 2360
24   and insert:
25       act; transferring all powers, duties, functions,
26       records, personnel, property, and unexpended balances
27       of appropriations, allocations, or other funds for the
28       administration of ch. 551, F.S., intact by a type two
29       transfer from the Division of Pari-Mutuel Wagering of
30       the Department of Business and Professional Regulation
31       to the Destination Resort Commission; providing for
32       severability; providing an effective date.




                                   Page 2 of 2
     4/5/2011 8:06:15 AM                                    577-03829-11
                                                      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 Commerce and Tourism Committee

BILL:           SB 2050
INTRODUCER:     Senator Braynon
SUBJECT:        Destination Resorts
DATE:           April 4, 2011                    REVISED:


           ANALYST                    STAFF DIRECTOR                 REFERENCE                                 ACTION
1. Pugh                             Cooper                                CM              Pre-meeting
2.                                                                        GO
3.                                                                        BC
4.
5.
6.



  I.    Summary:

        SB 2050 creates the seven-member Destination Resort Commission (commission), with the
        principal responsibility to license and regulate no more than five destination resorts that would
        offer limited gaming, such as baccarat, twenty-one, poker, craps, slot machines, video gaming of
        chance, and roulette wheels.

        Licenses would be awarded through an invitation-to-negotiate process. The commission is not
        required to award five licenses. The bill establishes a $1 million application fee, a $50 million
        initial license fee, and a $2 million annual license fee.

        The bill also provides a graduated gross receipts tax rate that would be based upon the
        infrastructure investment in each resort. The tax rate ranges from 10 percent for investments of
        $2.5 billion or more, 15 percent for investments of between $1 billion to $2.5 billion, and 20
        percent for investments under $1 billion. The commission would receive $5 million of these
        revenues to pay its operations; the rest would be allocated among the General Revenue Fund,
        Visit Florida’s tourism marketing campaign, school readiness programs, and transportation for
        the disadvantaged.

        The bill specifies a number of requirements for applicants, including that they plan to train and
        hire Florida residents.

        SB 2050 amends ss. 20.21, 120.80, 849.231, and 849.25, F.S.; and creates several unnumbered
        sections of law.
BILL: SB 2050                                                                                                          Page 2

    II.   Present Situation:

           Overview of Florida Gaming Laws and Regulations
          In general, gambling is illegal in Florida.1 Chapter 849, F.S., governs the conduct of gambling in
          Florida. Section 849.15, F.S., prohibits the manufacture, sale, lease, play, or possession of slot
          machines2 in Florida. Section 849.15(2), F.S., provides an exemption to the transportation of slot
          machines for the facilities that are authorized to conduct slot machine gaming under ch. 551, F.S.
          Florida’s gambling prohibition includes prohibitions against keeping a gambling house,3 and
          running a lottery.4 Section 7, Art. X, of the Florida Constitution, prohibits lotteries, other than
          pari-mutuel pools authorized by law on the effective date of the Florida Constitution, from being
          conducted in Florida by private citizens.5

          Gaming is permitted at licensed pari-mutuel wagering tracks and frontons,6 by the state operated
          lottery,7 which must operate “so as to maximize revenues in a manner consonant with the dignity
          of the state and the welfare of its citizens,”8 and by the Seminole Indian tribe.

          Pari-mutuel wagering and Cardrooms
          The pari-mutuel industry in Florida is made up of greyhound racing, different types of
          horseracing, and jai alai.9 The regulation of the pari-mutuel industry is governed by ch. 550, F.S.,
          and is administered by the Division of Pari-Mutuel Wagering (division) within the Department
          of Business and Professional Regulation (department). Chapter 550, F.S., provides specific
          licensing requirements, taxation provisions, and regulations for the conduct of the industry.

          Pari-mutuel facilities within the state are allowed to operate poker card rooms under s. 849.086,
          F.S. No-limit poker games are permitted.10 The cardrooms may operate 18 hours per day on
          Monday through Friday and for 24 hours per day on Saturday and Sunday. The games are played
          in a non-banking matter, i.e., the house 11 has no stake in the outcome of the game. Such activity
          is regulated by the department and must be approved by an ordinance of the county commission
          where the pari-mutuel facility is located. Each cardroom operator must pay a tax of 10 percent of
          the cardroom operation’s monthly gross receipts.12




1
  Section 849.08, F.S.
2
  Section 849.16, F.S., defines slot machines for purposes of ch. 849, F.S.
3
  Section 849.01, F.S.
4
  Section 849.09, F.S.
5
  The pari-mutuel pools that were authorized by law on the effective date of the Florida Constitution, as revised in 1968,
include horseracing, greyhound racing, and jai alai games. The revision was ratified by the electorate on November 5, 1968.
6
  See ch. 550, F.S., for the regulation of pari-mutuel activities.
7
  The Department of the Lottery is authorized by s. 15, Art. X, Florida Constitution. Chapter 24, F.S., was enacted by ch. 87-
65, L.O.F., to establish the state lottery. Section 24.102, F.S., provides the legislative purpose and intent in regard to the
lottery.
8
  See s. 24.104, F.S.
9
  “Jai alai” or “pelota” means a ball game of Spanish origin played on a court with three walls. See s. 550.002(18), F.S.
10
   Section 849.086(8)(b), F.S. Prior to the effective date of ch. 2010-29, L.O.F., the maximum bet was $5.
11
   Section 849.086(2)(j), F.S., defines “house” as “the cardroom operator and all employees of the cardroom operator.
12
   Section 849.086(13)(a), F.S.
BILL: SB 2050                                                                                                         Page 3

         Slot Machine Gaming
         Slot machine13 gaming at licensed pari-mutuels is governed by ch. 551, F.S. Pari-mutuel
         facilities that operate slot machine gaming or engage in other casino-style gaming are generally
         known as “racinos.” During the 2004 General Election, the electors approved Amendment 4 to
         the state constitution, codified as s. 23, Art. X, Florida Constitution, which authorized slot
         machines at existing pari-mutuel facilities in Miami-Dade and Broward counties upon an
         affirmative vote of the electors in those counties. Currently, there are five pari-mutuels in those
         counties conducting slot machine gaming.

         Slot machine licensees are required to pay a license fee of $2.5 million for fiscal year 2010-2011.
         The annual slot machine license fee is reduced in fiscal year 2011-2012 to $2 million.14 In
         addition to the license fees, the tax rate on slot machine revenues at each facility is 35 percent. 15

         Seminole Indian Compact
         On April 7, 2010, the Governor and the Seminole Tribe of Florida (Tribe) executed a tribal-state
         compact under the Indian Gaming Regulatory Act of 198816 that authorizes the Tribe to conduct
         Class III gaming17 at seven tribal facilities throughout the state. The compact was subsequently
         ratified by the Legislature.18

         The compact has a 20-year term. It permits the Tribe to offer slot machines, raffles and drawings,
         and any other new game authorized for any person for any purpose, at all seven of its tribal
         casinos.19


13
   Section 551.102(8), F.S., defines “slot machine” as the term is used in ch. 551, F.S., for the regulation of slot machine
gaming at the qualifying Miami-Dade and Broward county pari-mutuels.
14
   Chapter 551.106(1), F.S. Prior to the effective date of 2010-29, L.O.F., the license fee was $3 million.
15
   Chapter 551.106(1), F.S. Prior to the effective date of 2010-29, L.O.F., the tax rate was 50 percent.
16
   The Indian Gaming Regulatory Act of 1988 or “IGRA,” Pub. L. 100-497, 102 Stat. 2467, codified at 18 U.S.C. ss. 1166-
1168 and 25 U.S.C. s. 2701 et seq.
17
   The Indian Gaming Regulatory Act of 1988 divides gaming into three classes:
          “Class I gaming” means social games for minimal value or traditional forms of Indian gaming engaged in by
          individuals for tribal ceremonies or celebrations.
          “Class II gaming” includes bingo and pull-tabs, lotto, punch boards, tip jars, instant bingo, and other games similar
          to bingo. Class II gaming may also include certain non-banked card games if permitted by state law or not explicitly
          prohibited by the laws of the state but the card games must be played in conformity with the laws of the state. A
          tribe may conduct Class II gaming if:
          o the state in which the tribe is located permits such gaming for any purpose by any person, organization or entity;
               and
          o the governing body of the tribe adopts a gaming ordinance which is approved by the Chairman of the National
               Indian Gaming Commission.
          “Class III gaming” includes all forms of gaming that are not Class I or Class II, such as house-banked card games,
          casino games such as craps and roulette, electronic or electromechanical facsimiles of games of chance, slot
          machines, and pari-mutuel wagering.
18
   Chapter 2010-29, L.O.F.
19
   Gaming Compact Between the Seminole Tribe of Florida and the State of Florida, approved by the U.S. Department of the
Interior effective July 6, 2010, 75 Fed. Reg. 38833. (hereinafter Gaming Compact) The Tribe has three gaming facilities
located in Broward County (The Seminole Indian Casinos at Coconut Creek and Hollywood, and the Seminole Hard Rock
Hotel & Casino-Hollywood), and gaming facilities in Collier County (Seminole Indian Casino-Immokalee), Glades County
(Seminole Indian Casino-Brighton), Hendry County (Seminole Indian Casino-Big Cypress), and Hillsborough County
(Seminole Hard Rock Hotel & Casino-Tampa).
BILL: SB 2050                                                                                                        Page 4

         The compact permits the Tribe to conduct banked card games, including blackjack, chemin de
         fer, and baccarat, but the play of the banked card games is not allowed at the casinos at the
         Brighton or Big Cypress facilities. If these banked games are authorized for any other person for
         any other purpose, except if banked card games are authorized by a compact with the
         Miccosukee Indians, the Tribe would be authorized to offer banked cards at all seven of its
         facilities. The authority for banked card games terminates at the end of 5 years unless
         affirmatively extended by the Legislature or the Legislature authorizes any other person to offer
         banked card games.

         In exchange for the Tribe’s exclusive right to conduct slot machine gaming outside of Miami-
         Dade and Broward counties and the exclusive right to offer banked card games at the specified
         facilities (these grants of authority are known as the “exclusivity provision”), the compact
         provides for revenue sharing payments by the Tribe to the state as follows:
                  During the initial period (first 24 months), the Tribe is required to pay $12.5 million per
                  month ($150 million per year);
                  After the initial period, the Tribe’s guaranteed minimum revenue sharing payment is
                  $233 million for year 3, $233 million for year 4, and $234 million for year 5;
                  After the initial period, the Tribe pays the greater of the guaranteed minimum or
                  payments based on a variable percentage of annual net win20 that range from 12 percent
                  of net win up to $2 billion, to 25 percent of the amount of any net win greater than $4.5
                  billion;
                  After the first 5 years, the Tribe will continue to make payments to the state based on the
                  percentage of net win without a guaranteed minimum payment; and
                  If the Legislature does not extend the authorization for banked card games after the first 5
                  years, the net win calculations would exclude the net win from the Tribe’s facilities in
                  Broward County.

         The compact provides for the expansion of gaming in Miami-Dade and Broward counties under
         the following limited circumstances:
                 If new forms of Class III gaming and casino-style gaming are authorized for the eight
                 licensed pari-mutuels located in Miami-Dade and Broward counties and if the net win
                 from the Tribe’s Broward facilities drops for the year after the new gaming begins, then
                 the Tribe may reduce the payments from its Broward facilities by 50 percent of the
                 amount of the reduction in net win.
                 If new forms of Class III gaming and other casino-style gaming are authorized for other
                 locations in Miami-Dade and Broward counties, then the Tribe may exclude the net win
                 from their Broward facilities from their net win calculations when the new games begin
                 to be played.
                 If new games are authorized to any location in Miami-Dade and Broward counties within
                 the first 5 years of the Compact, the guaranteed minimum payment would no longer
                 apply to the Tribe’s revenue sharing payments and the $1 billion guarantee would not be
                 in effect. The Tribes payments would be based on the applicable percentage of net win.



20
  The compact defines “net win” as “the total receipts from the play of all Covered Games less all prize payouts and free
play or promotional credits issued by the Tribe.”
BILL: SB 2050                                                                                                          Page 5

         Revenue sharing payments cease if:
               The state authorizes new forms of Class III gaming or other casino-style gaming after
               February 1, 2010, or authorizes Class III gaming or other casino-style gaming at any
               location that was not authorized for such games before February 1, 2010; and
               The new gaming begins to be offered for private or public use.

         Economic Impact of Casino-Oriented Destination Resorts
         Thirteen states now have commercial casino operations, excluding those managed by Indian
         Tribes or at racetracks, and Massachusetts, Texas, New York, and Rhode Island are considering
         legislation this year to legalize casino gambling.21 Data on how many casinos are stand-alone
         operations and how many are “destination resorts”22 is not readily available.

         In the most recent numbers available, the American Gaming Association reported in 200823 that
         the commercial casino industry employed more than 375,000 people earning more than $13
         billion in total wages. The report also described casinos as significant contributors to the nation’s
         economy, with gross gaming revenues totaling more than $32.5 billion in 2008.

         Casinos have direct economic impacts on the local and state level. For example, a 2008
         economic development impact study on the Chumash Casino Resort in Santa Barbara, Calif.,24
         indicated that the casino:
                 Created 1,587 direct jobs and an additional 703 indirect jobs in the county;
                 Generated more than $350 million in sales in the county, and specifically that every $10
                 in sales at the casino generated $4 in additional sales in the community; and
                 Tourism received a major boost when the casino opened in 2004.

         The American Gaming Association maintains a database of pertinent economic data25 on the 13
         states that have commercial casinos and the 12 states, including Florida, with racetrack casinos
         (nicknamed “racinos”). The two states with commercial casinos closest to Florida – Mississippi
         and Louisiana – in 2009 reported significant revenues from gaming operations:
                  Mississippi reported at its 30 commercial casinos:
                      o Number of casino employees totaled 25,739;
                      o Casino employee wages were $855.25 million (including tips and benefits);
                      o Gross casino gaming revenue was $2.465 billion; and
                      o The state’s gaming tax revenue was $296.34 million.
                  Louisiana reported at its 14 commercial casinos:
21
   Interim Report 2011-133: Review of Expansion of Casino Gaming in Other States. Prepared by Senate Committee on
Regulated Industries. Published in October 2010. Available at
http://archive.flsenate.gov/data/Publications/2011/Senate/reports/interim_reports/pdf/2011-133ri.pdf.
22
   “Destination resorts” or “destination resort casinos” are generally defined as mega-centers that feature shopping,
conference facilities, restaurants, and live entertainment in addition to casino gaming. Most new casinos are being built in
this format.
23
   http://www.americangaming.org/Industry/factsheets/general_info_detail.cfv?id=39.
24
   Economic Impact of the Chumash Casino Resort on the County of Santa Barbara, prepared by The California Economic
Forecast for the Santa Barbara County taxpayers Association. Published February 2008. Available at:
http://www.sbcta.org/Final_Report__Chumash.pdf . Last visited March 19, 2011.
25
   The American Gaming Association has a complete list of what types of gaming operations are in each state, economic
development data, and how each state uses its share of the revenues generated. The latest data is from 2009. See:
http://www.americangaming.org/Industry/state/statistics.cfm.
BILL: SB 2050                                                                                                           Page 6

                      o     Number of casino employees totaled 17,610;
                      o     Casino employee wages were $602.51 million;
                      o     Gross casino gaming revenue was $2.456 billion; and
                      o     The state’s gaming tax revenue was $598.14 million.

         The database does not calculate indirect and induced economic benefits from casino operations.
         Destination resorts are also popular internationally among tourists.26 What is purported to be the
         largest destination resort east of Las Vegas is under construction in the Bahamas.27 The new
         Baha Mar resort is expected to contribute an additional 10 percent growth in the Bahamian GDP
         by creating 12,000 jobs paying in the aggregate more than $305 million in annual wages.
         According to projections, Baha Mar will help raise the average annual income for a Bahamian
         family from $29,000 to $33,500, and in its first year of operations will contribute almost $1
         billion to the local economy.

         Tourism and Convention Space
         According to preliminary estimates28 by Visit Florida, an estimated 82.6 million visitors came to
         Florida in 2010, an increase of 2.1 percent over 2009 figures.29 For the second half of 2010,
         direct travel-related employment in Florida increased by 1.8 percent, with more than 15,000
         additional jobs in the fourth quarter alone. Domestic visitation to Florida increased by 0.5
         percent in 2010, when compared to 2009. During the same period, Canadian travel to Florida
         increased by 16.2 percent and the overseas market to Florida increased by 13.6 percent. Primary
         data collected at Florida’s 14 major airports in 2010 reflects a 3.5-percent increase in total
         enplanements from 2009.30

         Preliminary estimates of visitors to Florida for the fourth quarter of 2010 show an estimated 20.8
         million people visited the Sunshine State. This reflects an increase of 5.1 percent from the same
         period in 2009. Visit Florida also reported that an estimated 18.0 million domestic visitors came
         to Florida during the fourth quarter of 2010, a 4.1 percent increase over 2009. During the same
         period, Canadian travel to Florida increased by 5.7 percent and the overseas market to Florida
         increased by 13.5 percent. Primary data collected at Florida’s 14 major airports shows a 7.8
         percent increase in total enplanements to Florida for the fourth quarter of 2010 over the same
         period in 2009.31

         The following information regarding convention space was obtained from select areas around the
         state:
                 In Orlando, the Gaylord Orlando Hotel has 400,000 square feet of meeting and
                 convention space and 1,406 hotel rooms and suites;32 the Peabody Orlando has 300,000

26
   An example of websites advertising international casinos and destination resorts is http://www.worldcasinodirectory.com.
Last visited March 19, 2011.
27
   Information posted at http://starglobaltribune.com/2011/destination-resorts-a-new-generation-of-tourists-destinations-
opened-5954. Last visited March 8, 2011.
28
   Preliminary estimates are issued 45 days after the end of each calendar quarter. Final estimates are released when final data
are received for all estimates in the report.
29
   See http://media.visitflorida.org/news/news.php?id=169, (last visited March 19, 2011).
30
   Id.
31
   Id.
32
   See http://www.gaylordhotels.com/palms-home.html?intcmp=gp-pl=topnav-ref=home.
BILL: SB 2050                                                                                          Page 7

                    square feet of meeting and convention space; the Orlando World Marriott has 450,000
                    square feet of meeting and convention space and 2,000 hotel rooms and suites;33 and the
                    Walt Disney World Resort has more than 600,000 square feet of space.
                    The Orange County Convention Center in Orlando has 2.1 million square feet of exhibit
                    space.
                    The Tampa Convention Center has 200,000 square feet of exhibit space and 42,000
                    square feet of meeting space.
                    Jacksonville Convention Center has 78,500 square feet of exhibit space and 48,750
                    square feet of meeting space.
                    The Miami Convention Center has 28,000 square feet of exhibit space, an additional 34
                    meeting rooms, a 444- seat and a 5,000-seat auditorium, and a 117-seat lecture hall.

           Executive Branch Structure
           Article IV of the Florida Constitution, limits executive departments to 25 in number, excluding
           those authorized or created in that document. There are five constitutionally created or
           authorized departmental entities: State Board of Administration; Department of Veterans’
           Affairs; Florida Fish & Wildlife Conservation Commission; Department of Elderly Affairs;
           Board of Governors; and the Parole Commission.

           There are 21 departments authorized by statute: Department of State; Department of Legal
           Affairs; Department of Financial Services; Department of Agriculture and Consumer Services;
           Department of Education; Department of Business and Professional Regulation, Department of
           Community Affairs; Department of Children & Family Services; Florida Department of Law
           Enforcement; Department of Revenue; Department of Management Services; Department of
           Transportation; Department of Highway Safety and Motor Vehicles; Department of
           Environmental Protection; Department of Military Affairs; Department of Citrus; Department of
           Corrections; Department of Juvenile Justice; Department of the Lottery; Agency for Health Care
           Administration; and the Department of Health.

           The Executive Office of the Governor may be considered the functional equivalent of a
           department.

           In summary, there appears to be 22 state entities that are executive departments, so Florida has
           three available slots for any new agencies the Legislature may in the future consider creating.

III.       Effect of Proposed Changes:

           SB 2050 creates several undesignated sections of law and amends four sections of existing law to
           establish the Destination Resort Commission (commission), which will select and regulate any
           destination resort operations that open in Florida.

           Section 1: Amends s. 20.21, F.S., to create the commission within the Department of Revenue
           (DOR).



33
     See http://www.marriottworldcenter.com/.
BILL: SB 2050                                                                                        Page 8

      Section 2: Amends s. 120.80, F.S., to exempt the commission from certain provisions of the
      Florida Administrative Procedures Act, in ch. 120, F.S., specifically:
             The notice and hearing requirements of ss. 120.569 and 120.57(1)9a), F.S., for
             proceedings related to the issuance, denial, renewal, or amendment of a destination resort
             license;
             The process and deadlines in s. 120.60, F.S., for granting licenses does not apply to
             applications for a destination resort license; and
             The process for petitioning for, or granting, a waiver or variance, or granting a waiver or
             variance, pursuant to s. 120.542, F.S.

      Section 3: Specifies that sections 4-35 of SB 2050 may be cited as the “Destination Resort Act”
      or “Resort Act.”

      Section 4: Creates definitions for 27 terms used in this act. Key definitions are:
             Destination resort or resort means a freestanding, land-based structure in which limited
             gaming may be conducted. A destination resort is a mixed-use development consisting of
             a combination of various tourism amenities and facilities, including, but not limited to,
             hotels, villas, restaurants, limited gaming facilities, convention facilities, attractions,
             entertainment facilities, service centers, and shopping centers.
             Gross receipts means the total of cash or cash equivalents received or retained as
             winnings by a resort licensee and the compensation received for conducting any game in
             which the resort licensee is not party to a wager, less any cash taken in fraudulent acts
             perpetrated against the resort licensee for which the resort licensee is not reimbursed.
             The term does not include tokens, foreign currency that cannot be converted into U.S.
             currency, promotional credits or “free plays,” or the amount of extended credit until
             collected from the customer.
             Licensee means, as the context requires, a resort licensee, supplier licensee, or
             occupational licensee.
             Limited gaming, game, or gaming means the games authorized pursuant to the Resort Act
             in a limited gaming facility, including, but not limited to, those commonly known as
             baccarat, twenty-one, poker, craps, slot machines, video gaming of chance, roulette
             wheels, Klondike tables, punch-board, faro layout, numbers ticket, push car, jar ticket,
             pull tab, or their common variants, or any other game of chance or wagering device that
             is authorized by the commission.
             Qualifier means an affiliate, affiliated company, officer, director, or managerial employee
             of an applicant for a resort license, or a person who holds a direct or indirect equity
             interest in the applicant. The term may include an institutional investor. As used in this
             subsection, the terms “affiliate,” “affiliated company,” and “a person who holds a direct
             or indirect equity interest in the applicant” do not include a partnership, a joint venture
             relationship, a shareholder of a corporation, a member of a limited liability company, or a
             partner in a limited liability partnership that has a direct or indirect equity interest in the
             applicant for a resort license of 5 percent or less and is not involved in the gaming
             operations as defined by the rules of the commission.

      Section 5: Creates the Destination Resort Commission and specifies its governance. This
      section specifies that the commission is created in DOR for administrative purposes only, and it
BILL: SB 2050                                                                                                             Page 9

           is a separate budget entity not subject to control, supervision, or direction by DOR in any
           manner.

           The commission is exempt from the provisions of s. 20.052, F.S., which creates a public-purpose
           evaluation of all advisory councils, boards and commissions before they are statutorily created.
           The commission will consist of seven full-time members:
                   Three appointed by the Governor and confirmed by the Senate in the legislative session
                   following the appointments;
                   Two appointed by the President of the Senate; and
                   Two appointed by the Speaker of the House of Representatives.

           For the initial appointments, the Governor’s appointees shall serve 2-year terms and the other
           appointees shall serve 4-year terms; thereafter, all appointees shall serve 4-year terms. Terms
           expire on June 30 of the applicable year. Any commissioner whose term has expired shall
           continue serving until a replacement is appointed. Vacancies are filled in the same manner as
           initial appointments.

           SB 2050 specifies that the commissioners must be Florida residents and experienced in corporate
           finance, tourism, convention and resort management, gaming, investigation or law enforcement,
           business law, or related legal experience, except that:
                  One member of the commission must be a Florida-licensed certified public accountant
                  with at least 5 years of experience in general accounting; and
                  One member must have experience in the fields of investigation or law enforcement.

           A quorum consists of 4 members.

           The bill prohibits the appointment to the commission of:
                   Elected officials;
                   Persons with a direct or indirect financial interest in applicants for a resort license or
                   resort licensees;
                   Persons who are related within the “second degree of consanguinity”34 or affinity to any
                   person licensed by the commission; and
                   Persons who have been indicted for, convicted of, pled guilty or nolo contendere to, or
                   forfeited bail for any felony or misdemeanor crime involving gambling or fraud, in any
                   of the 50 states, within the 10 years preceding their appointment.

           The Governor will appoint one member of the commission to serve as the chair. The chair will
           be the administrative head of the commission and would be responsible for setting the agenda for
           commission meetings and approving all notices, vouchers, subpoenas, and reports required by
           the act. The bill also provides for a vice chair to be elected by his or her fellow members during
           the commission’s first meeting.

           Other governance issues include:
                  The commission headquarters will be in Tallahassee;

34
     Legally defined as grandparents, siblings, grandchildren, aunts and uncles, nieces and nephews, and first cousins.
BILL: SB 2050                                                                                      Page 10

                The initial meeting of the commission must be held by October 1, 2011;
                The commission must meet at least monthly;
                The chair or 4 commissioners can call a meeting, upon 72 hours’ notice; and
                The commission in toto sits as the agency head for purposes of ch. 120, F.S., except that
                the commission’s executive director is the agency head for purposes of final agency
                action under ch. 120, F.S., for all regulatory issues delegated to the executive director.

      Section 6: Specifies the commission’s powers and duties. The commission will have jurisdiction
      over and shall supervise all destination resort gaming activity governed by this act, including the
      power to:
             Authorize limited gaming at five destination resorts;
             Conduct investigations as necessary to fulfill its responsibilities;
             Use an invitation-to-negotiate process for applicants based on minimum requirements
             established by this legislation;
             Investigate each applicant for a resort license and determine eligibility, among competing
             applicants, based on which ones best serve the interest of the residents of Florida based
             on the:
                 o Potential for economic development presented by the applicant’s proposed
                     investment in infrastructure, such as hotels and other nongaming entertainment
                     facilities; and the
                 o Applicant’s ability to maximize revenue for the state.
             Grant licenses;
             Establish and collect fees for conducting background checks on all applicants for licenses
             and persons who are contracted to perform services at the resorts;
             Issue subpoenas;
             Require a person to file a statement in writing and under oath in response to the
             commission’s investigation;
             Keep accurate and complete records of its proceedings;
             Apply to the courts for injunctive relief to enforce the act and any rules adopted by the
             commission;
             Establish field offices, as necessary; and
             Suspend or revoke the license of any person found to no longer be qualified. The
             commission also can deny, revoke, suspend, or place conditions on a licensee who
             violates any provision of the act, a rule adopted by the commission, or an order of the
             commission.

      Additionally, the commission, the Florida Department of Law Enforcement (FDLE), and local
      law enforcement agencies have unrestricted access to inspect resort facilities and gaming devices
      at all times, and share concurrent authority to investigate criminal violations of this act and any
      other criminal activity that may be occurring at a resort.

      Section 7: The commission is authorized to adopt all rules necessary, including emergency
      rules, to implement, administer, and regulate limited gaming. The bill provides a listing of
      specific areas in which the commission is authorized to adopt rules, these include the types of
      games, the time and place for the gaming, and the structures where limited gaming is authorized.
      The commission also can establish procedures to scientifically test slot machines and other
BILL: SB 2050                                                                                      Page 11

      authorized gaming equipment. The commission can adopt any rule necessary to accomplish the
      purposes of the act.

      Section 8: The commission is authorized to employ sworn law enforcement officers, who must
      have arrest authority pursuant to s. 901.15, F.S., have full law enforcement powers, and be
      certified under s. 943.1395, F.S.

      Section 9: The commission is authorized to appoint (and remove) a full-time executive director,
      who will perform all the duties assigned him by the commission, and employee staff and
      consultants as necessary.

      This section also specifies the types of people who may not be hired, depending on their previous
      3 years’ work history.

      Section 10: The commission must adopt a comprehensive code of ethics for its members and
      staff to follow. Generally, the code of ethics will prohibit commissioners, the executive director,
      and employees from having a direct or indirect financial interest in the entities they will regulate.
      It would also prohibit engaging in political activity, including using one’s official position to
      influence the result of an election. Also, employees or agents of the commission will be
      prohibited from engaging in outside employment related to the activities or persons regulated by
      the commission, until 5 years after leaving employment or membership on the commission.

      Section 11: The commissioners, the executive director, and each managerial employee must file
      annual financial disclosures. The bill also specifies the circumstances in which commissioners
      and staff must immediately file disclosures, including matters related to criminal arrests,
      negotiations for an interest in a licensee or applicant, and negotiations for employment with a
      licensee or applicant. These persons are also prohibited from engaging in activities that may
      constitute a conflict of interest; accepting gifts from licensees, applicants, or entities otherwise
      affiliated with licensees or applicants; and report any attempted bribes.

      Section 12: Commissioners, licensees, applicants, or any affiliate or representative of an
      applicant or licensee are prohibited from engaging directly or indirectly in an ex parte
      communication with a member of the commission concerning a pending application, license, or
      enforcement action or concerning a matter that likely will be pending before the commission.

      Any ex parte communication must immediately be reported in writing to the chair and placed on
      the record. Persons who make the ex parte communication must submit to the commission a
      written description of the communication which identifies the commissioner who received the
      communication. A commissioner who fails to disclose an ex parte communication with 10 days
      of the communication is subject to removal from office and a civil penalty not to exceed $5,000.

      Any such violation will be investigated by the Commission on Ethics.

      Section 13: A violation of the act by a commissioner may result in disqualification or constitute
      cause for removal by the Governor. The Governor may impose other disciplinary action as
      determined by the commissioner. Violations by employees may result in termination of
      employment. If the violation involves an unintentional financial interest in a licensee or
BILL: SB 2050                                                                                      Page 12

      applicant, the person would not have violated the act if they divested their financial interest with
      30 days after the interest was acquired.

      Section 14: The regulation of gaming at destination resorts is pre-empted to the state, and no
      local government may enact any ordinance attempting to regulate such activities.

      Section 15: SB 2050 establishes a detailed process for awarding destination resort licenses.
      Licenses will be awarded through an invitation-to-negotiate (invitation) process in which
      applicants reply on forms provided by the commission in response to the invitation to bid. The
      commission may stagger its issuance of the invitations, although replies to the invitation to bid
      must be received by the commission within 6 months of the date the invitations were issued.

      After reviewing the replies to the invitation, the commission may select one or more replies and
      commence negotiations after determining which replies are in the best interest of the state based
      on the selection criteria. The commission must award a resort license within 12 months after the
      deadline for submission of the applications. The commission may not award more than five
      licenses statewide.

      Section 16: SB 2050 specifies a number of minimum criteria the commission must use when
      evaluating resort license applications. Key criteria include:
             The applicant for a resort license must demonstrate that the resort will:
                 o Increase tourism;
                 o Generate jobs;
                 o Provide revenue to the local economy; and
                 o Provide revenue to the General Revenue Fund.
             Additionally, the applicant must demonstrate:
                 o A history of, or a bona fide plan for, community involvement or investment in the
                     community where the resort having a limited gaming facility will be located;
                 o The financial ability to purchase and maintain an adequate surety bond;
                 o Adequate capitalization to develop, construct, maintain, and operate the proposed
                     resort and convention center in accordance with the act; and
                 o The ability to implement a program to train and employ residents of this state for
                     jobs that will be available at the destination resort, including its ability to
                     implement a program for the training of low-income persons.
             The aesthetic appearance of the proposed resort, if the commission chooses to make this a
             consideration.
             The applicant must demonstrate how it will comply with state and federal affirmative
             action guidelines.
             The applicant must demonstrate the ability to generate substantial gross receipts.

      This section of the bill also specifies that resort licenses will be issued “only to persons of good
      moral character who are at least 21 years of age.

      A resort license will not be issued to any applicant, if such applicant, a qualifier, or an
      institutional investor:
               Has, within the last 10 years, filed for protection under the Federal Bankruptcy Code or
               had an involuntary bankruptcy petition filed against the applicant;
BILL: SB 2050                                                                                      Page 13

                Has, within the last 5 years, been adjudicated by a court or tribunal for failure to pay
                income, sales, or gross receipts tax due and payable under any federal, state, or local law,
                after exhaustion of all appeals or administrative remedies;
                Has been convicted of a felony under the laws of any state or the United States;
                Has been convicted of any violation under ch. 817, F.S., related to fraudulent practices, or
                under a substantially similar law of another jurisdiction;
                Knowingly submitted false information in the application for the license;
                Is a member or employee of the commission;
                Was licensed to own or operate gaming or pari-mutuel facilities in this state or another
                jurisdiction and that license was revoked; or
                Fails to meet any other criteria for licensure set forth in the Resort Act.

      In this context, the “conviction” includes an adjudication of guilt on a plea of guilty or nolo
      contendere or the forfeiture of a bond when charged with a crime.

      Section 17: SB 2050 specifies the information that must be included in the application. The
      application must be sworn. Key required information includes:
             A description of the proposed resort, including a description of the anticipated economic
             benefit to the community, number of employees, a projection of attendance at the resort,
             a projection of gross receipts, and other information;
             The time-frame for completing the resort;
             A plan for training Floridians for jobs at the resort;
             Identifying information about the applicant and all qualifiers, except those persons who
             specifically do not have to be identified, such as anyone with less than 5 percent interest
             in the resort project;
             Identification of elected officials, their spouses, and their children who, directly or
             indirectly, have any type of financial relationship with the applicant; and
             Fingerprints of the applicant, officers, qualifiers, and any person who will be responsible
             for operational controls.

      The commission, however, is the sole arbiter on what information should be included in the
      application. It also may order criminal history checks based on the fingerprint data received with
      the application.

      The applicant has a responsibility to file a supplemental report to the application if there is any
      material change in any circumstance relevant to the commission’s review of the proposal.

      Each application must be submitted along with a $1 million non-refundable application fee to
      defray the commission’s costs of reviewing it. Additionally, a one-time licensing fee of $50
      million must be submitted along with the application, but this fee is refundable to the applicant
      within 30 days if the commission denies the application. If the applicant withdraws, the
      commission only has to refund 80 percent of the licensing fee, also within 30 days.

      Section 18: An incomplete application is grounds for denial of an application, under SB 2050.
      However, if the commission determines that an application is incomplete, the applicant may
      request an informal conference with the executive director or his designee. The executive
BILL: SB 2050                                                                                          Page 14

      director may grant a 30-day extension to complete an application. If the executive director still
      finds the application incomplete, the applicant may appeal to the commission – at which point,
      the issuance of licenses is stayed until the commission rules on the appeal.

      Section 19: Provides a limited application process for institutional investors, generally defined
      as pension funds, public retirement funds, insurance companies, financial institutions, or trusts
      that hold less than 5 percent of the equity securities or 5 percent of the debt securities of an
      applicant or affiliate of the applicant, and are a publicly traded corporation. Institutional
      investors also must file a certified statement that they do not intend to influence or affect the
      affairs of the applicant or its affiliate, and that the securities of the applicant or affiliate that it
      holds were purchased for investment purposes only. The commission may require that an
      institutional investor must be treated as a qualifier if it finds that such investor is in a position to
      exercise a substantial impact upon the controlling interests of a licensee.

      Section 20: The bill also exempts lenders and underwriters as qualifiers, meaning they are not
      required to be licensed.

      Section 21: SB 2050 establishes several conditions for obtaining a new or renewed resort
      license. The key conditions require that the licensee:
              Comply with the Resort Act and rules of the commission;
              Allow the commission and FDLE unlimited access to and the right of inspection for the
              areas of the resort where limited gaming activities occur;
              Complete the resort in accordance with the plans and timeframe submitted to the
              commission in the proposal, unless a waiver has been granted;
              Ensure that the facilities-based computer system is operational and that all accounting
              functions are structured to facilitate regulatory oversight, which shall require the systems
              to provide for real-time information to the commission and FDLE;
              Ensure that each game, machine, or device is protected from tampering or manipulation;
              Submit and comply at all times with a detailed security plan;
              Create and file with the commission a written policy for:
                  o Creating opportunities to purchase from vendors from this state, including
                      minority vendors;
                  o Creating opportunities for employment of residents of this state, including
                      minority residents;
                  o Ensuring opportunities for hiring construction services from minority contractors;
                  o Ensuring opportunities for employment are on an equal, nondiscriminatory basis;
                  o Training employees on responsible gaming and work with a compulsive or
                      addictive gambling prevention program;
                  o Implementing a drug-testing program;
                  o Using the Internet-based job-listing system of the Agency for Workforce
                      Innovation in advertising employment opportunities; and
                  o Ensuring that each slot machine pays out at least 85 percent.

      In addition, the resort must keep and maintain permanent daily records of its gaming operations
      for not less than 5 years.
BILL: SB 2050                                                                                                              Page 15

            Section 22: Each destination resort licensee is required to maintain a surety bond, at its own cost
            and expense. The penal sum35 of the bond is to be determined by the commission and payable to
            the Governor. The commission shall set the bond at the total amount of the estimated license fees
            and taxes estimated to become due for the resort. In lieu of a bond, a licensee may instead pay a
            like amount of funds to the commission.

            Section 23: Limited gaming may be conducted at a licensed resort, but only within a designated
            area of the resort as approved by the commission. Limited gaming activities may not begin until
            the resort is completed in accordance with the plans submitted to the commission. The resort
            licensee may only accept wagers from persons at least 21 years of age who are present in the
            facility, and may set the amount of wagers. The facility may not accept wagers using money,
            except for slot machine gaming. Further, the gaming facility may be open 24 hours per day, 365
            days per year.

            Section 24: On each anniversary date of receipt of its resort license, the licensee must pay the
            commission a $2 million license fee. The license fee shall be deposited in the Destination Resort
            Trust Fund to be used by the commission and FDLE for investigations, regulation of resorts, and
            enforcement.

            In addition, each resort licensee is required to pay a gross receipts tax on the gross receipts for
            limited gaming activities at the resort. Once the resort is complete, the licensee must submit all
            information, as required by the commission, to determine the infrastructure investment and to set
            the tax rate for the resort.

            The gross receipts tax rate is calculated this way:
                   If the total infrastructure investment is $2.5 billion or more, the gross receipts tax rate is
                   10 percent;
                   If the total infrastructure investment is at least $1 billion but less than $2.5 billion, the
                   gross receipts tax is 15 percent; and
                   If the total infrastructure investment is less than $1 billion, the gross receipts tax is 20
                   percent.

            Proceeds of the gross receipts tax will be deposited in the Destination Resort Trust Fund and
            shall be used to fund the commission’s operating costs, pursuant to legislative appropriation.

            On June 30 of each year, all unappropriated revenues in excess of $5 million must be deposited
            as follows:
                    95 percent of the money in the fund is deposited to the General Revenue Fund;
                    2.5 percent is deposited in the Tourism Promotional Trust Fund for use by the Florida
                    Commission on Tourism;
                    1.25 percent is deposited into the Employment Security Administration Trust Fund for
                    use by the school readiness program; and
                    1.25 percent is deposited into the Transportation Disadvantaged Trust Fund for use by the
                    Transportation Disadvantaged Commission, which oversees locally run programs to
                    provide transportation services to the disabled, elderly, and underprivileged.
35
     “Penal sum” is the stated limit of the bond which, in turn, is the limit of the insurer's liability under the bond.
BILL: SB 2050                                                                                     Page 16

      Section 25: SB 2050 requires that FDLE implement the fingerprint requirements, and shall
      submit the results to the commission. The costs of the fingerprinting and background check shall
      be borne by the applicant.

      Additionally, all the fingerprints must be entered into the statewide database, as authorized in s.
      943.05(2)(b), F.S., and available for all specified purposes. The fingerprints also may be
      forwarded to the FBI.

      Any applicant who is fingerprinted and who has been convicted or pleaded guilty or nolo
      contendere to a disqualifying offense must notify the commission within 48 hours.

      Section 26: Each resort licensee is required to train employees on responsible gaming and to
      work with a program on responsible gambling to recognize problem gambling. The commission
      is required to contract for services related to the prevention of compulsive and addictive
      gambling. The contract for the services must require advertising of responsible gambling and the
      publication of a gambling telephone help line. Each resort licensee is required to fund the
      program with a $250,000 annual fee.

      Section 27: Suppliers’ licenses are required in order to furnish, on a regular or continuing basis,
      gaming equipment, supplies, devices, or goods or services relating to the realty, construction, or
      business of a resort licensee. This requirement includes, but is not limited to, manufacturers,
      distributers, food purveyors, construction companies, and junket enterprises. Each applicant and
      licensee must pay an annual license fee of $5,000. A person is not eligible for a suppliers’ license
      if the person has committed a felony, knowingly submitted false information to the commission,
      the applicant is a member of the committee, the applicant is not a natural person, or the applicant
      has a resort license or pari-mutuel license in either this state or any other jurisdiction.

      All applicants for suppliers’ licenses must submit to background investigations and comply with
      the fingerprint requirements in the act.

      The bill authorizes the commission to revoke a license for a violation of the act and commission
      rules.

      Section 28: Any person who wishes to become a gaming employee must apply to the
      commission for an occupational license; no person may be employed by a resort licensee until
      that person has an occupational license. The application fee must be set by the commission, but
      an employee occupational license fee may not exceed $50. Occupational licensees must be at
      least 21 years old to perform gaming related functions and at least 18 to perform non-gaming
      related functions.

      All applicants for occupational licenses must submit to background investigations and comply
      with the fingerprint requirements in the act. The bill authorized the commission to revoke a
      license for a violation of the act and commission rules. A person who has committed a felony or
      crime involving dishonesty or moral turpitude in any jurisdiction is not eligible for an
      occupational license.
BILL: SB 2050                                                                                      Page 17

      Section 29: The commission’s executive director may grant temporary suppliers and
      occupational licenses, under certain conditions. The temporary license expires after 90 days.

      Section 30: SB 2050 requires the commission to submit quarterly reports to the Governor,
      President of the Senate, and Speaker of the House of Representatives. The reports must include:
              A statement of receipts and disbursements related to limited gaming;
              A summary of disciplinary actions taken by the commission, and
              Any additional information or recommendations that the commission believes may
              improve the regulation of limited gaming or increase the economic benefits of limited
              gaming to this state.

      Section 31: The chair of the commission may assign hearings to two or more members of the
      commission. Only the commissioners assigned to a hearing can participate in the final decision
      for the commission on that matter. If only two commissioners are assigned a matter and they
      cannot decide, the chair may cast the deciding vote. Any party to a proceeding before the
      commission may request the matter to be heard before the full commission; the full commission
      must convene within 15 days to hear the matter.

      Section 32: If a dispute that involves alleged wins, losses, payments of cash, prizes, benefits,
      tickets, or other items, or a dispute that involves the manner in which a game, tournament,
      contest, drawing, promotion, race or similar activity was conducted, cannot be resolved between
      the licensee and the patron, the licensee must immediately notify the commission if the dispute
      involves at least $500.

      If the dispute involves less than $500, the licensee must notify the patron of the patron’s right to
      file a complaint with the commission.

      The commission may investigate the matter and may require the licensee to pay restitution to the
      patron. Failure to notify the commission of a dispute or notifying a patron of his or her right to
      file a complaint constitutes grounds for disciplinary action against the resort licensee.

      Section 33: SB 2050 permits the use of credit instruments. Resort licensees may accept
      incomplete credit instruments if they are signed by the patron and the amount is completed in
      numbers; the resort licensee may complete the incomplete instrument. The resort licensee also
      may accept a credit instrument payable to an affiliate of the licensee. In addition, the resort
      licensee may accept the credit instrument before, during, or after the patron has incurred the debt
      with the resort.

      However, SB 2050 also allows patrons to establish an account by a cash deposit, recognized
      traveler’s check, or any other credit instrument that is equivalent to cash.

      The bill also establishes that a patron’s mental disorder is not a defense against paying the debt;
      nor does the failure of a resort to comply with all of the requirements of this section erase the
      debt.

      The commission is authorized to adopt rules to address the credit instrument issues.
BILL: SB 2050                                                                                            Page 18

           Section 34: SB 2050 provides that a person may request to be excluded from all limited gaming
           facilities by completing a self-exclusion form and submitting it to the commission. The form
           requires the patron to include his or her name, date of birth, and other identifying information.
           The form also requires the individual to indicate how long he or she wishes to be excluded from
           the limited gaming facilities.

           Section 35: Amends s. 849.15, F.S., to reference the Destination Resort Act.

           Section 36: Amends s. 849.231, F.S., to exempt the limited gaming at destination resorts from
           the statutory prohibition against possession of gambling devices in Florida.

           Section 37: Amends s. 849.25, F.S., to correct cross-references and to exempt the limited
           gaming at destination resorts from the statutory prohibition against bookmaking.

           Section 38: Specifies that this act shall take effect July 1, 2011.


IV.        Constitutional Issues:

           A.        Municipality/County Mandates Restrictions:

                     None.

           B.        Public Records/Open Meetings Issues:

                     None.

           C.        Trust Funds Restrictions:

                     None.

           D.        Other Constitutional Issues:

                     The Florida Constitution is silent on the subject of casino gaming. However, the Florida
                     Constitution does not prohibit the Legislature from creating laws to authorize, regulate, or
                     tax gaming in the state. With regard to gaming, the Florida Constitution only addresses
                     the subjects of lotteries and slot machine gaming. The Florida Constitution prohibits
                     lotteries, except pari-mutuel pools permitted by state law,36 but specifically allow for
                     state operated lotteries.37

                     Even though the Florida Constitution does not specifically prohibit any form of gaming
                     other than lotteries that are not state operated, the provision that expanded the pari-mutuel
                     locations that can offer slot machine gaming is being challenged as violating s. 23, Art.
                     X, Florida Constitution. These lawsuits challenge the Legislature’s authority to authorize
                     slot machine gaming outside the pari-mutuel facilities enumerated in s. 23, Art. X, of the

36
     Section 7, Art. X, Florida Constitution.
37
     Section 15, Art. X, Florida Constitution.
BILL: SB 2050                                                                                                 Page 19

                 Florida Constitution, which references pari-mutuel facilities that were existing and had
                 conducted live racing or games in that county during each of the last 2-calendar years
                 before the effective date of the amendment (2004). The trial court upheld the
                 constitutionality in Leon County.38 That decision is on appeal to the First District Court
                 of Appeals.39

V.      Fiscal Impact Statement:

        A.       Tax/Fee Issues:

                 Applicants for a destination resort license would pay an application fee of $1 million
                 dollars to defray the costs of investigating and reviewing the application.

                 The application also must include a one-time licensing fee of $50 million, which the
                 commission must refund within 30 days of denying an application. If an applicant
                 withdraws its application after the application deadline, the commission must refund 80
                 percent of the licensing fee within 30 days after the application is withdrawn.

                 Each resort licensee would be required to pay $2 million annually to the commission as a
                 license fee. In addition, each resort licensee would pay a gross receipts tax. The tax rate
                 would be dependent on the licensee’s investment in infrastructure. Once the resort is
                 complete, the licensee must submit all information, as required by the commission, to
                 determine the infrastructure investment and to set the tax rate for the resort.

                 If the total infrastructure investment is $2.5 billion or more, the gross receipts tax rate is
                 10 percent. If the total infrastructure investment is at least $1 billion but less than $2.5
                 billion, the gross receipts tax is 15 percent. If the total infrastructure investment is less
                 than $1 billion, the gross receipts tax is 20 percent.

                 Suppliers’ licensees would be required to pay an annual license fee of $5,000, while the
                 fee for an occupational licensee may not exceed $50.

                 The state’s Revenue Estimating Conference has not met to estimate the revenue impact of
                 SB 2050.

                  However, the casino industry estimates that implementation of a similar bill filed this
                 session may:
                         Generate total non-gaming revenue for the first year of $85.4 million;



38
   See Order on Plaintiff’s Motion for Summary Judgment, consolidated cases, Florida Gaming Centers, Inc. v. Department
of Business and Professional Regulation and South Florida Racing Association, No. 2010 CA 2257 and Calder Race Course,
Inc. v. Department of Business and Professional Regulation and South Florida Racing Association, No. 2010 CA 2132 (Fla.
2d Cir. Ct. December 14, 2010).
39
   See Calder Race Course, Inc. v. Department of Business and Professional Regulation and South Florida Racing
Association, 1D11-130 (Fla. 1st DCA) and Florida Gaming Centers, Inc. v. Department of Business and Professional
Regulation and South Florida Racing Association, 1D10-6780 (Fla. 1st DCA).
BILL: SB 2050                                                                                         Page 20

                        Induce by the third year $64.5 million in convention and local bed tax
                        collections; and
                        Increase collections of corporate income taxes and sales taxes by nearly $52
                        million.

       B.       Private Sector Impact:

                The industry estimates that five resorts, if authorized by the commission, would create
                140,000 construction jobs and would generate $10 billion in construction costs.

                The industry estimates that the five resorts, if built, would attract 5.26 million out-of-
                market visitors, including more than 313,000 convention visitors.

       C.       Government Sector Impact:

                Indeterminate. However, the bill authorizes fees projected to be sufficient to pay the costs
                of administering the act.

VI.    Technical Deficiencies:

       Sections 35-37 of the bill refer to the “sections 3 through 35” of the Destination Resort Act in
       their cross-references. Actually, only sections 3 through 34 are part of the Destination Resort
       Act. It is also unusual to refer in substantive law to the unnumbered sections of a particular act,
       because the numbering could change as the bill travels through the committee and floor process.
       Perhaps the cross-references should refer simply to the “Destination Resort Act.”

       Also, it is typical in statutes for appointed commissioners to be term-limited. SB 2050 does not
       limit the Destination Resort commissioners to a specific number of terms.

VII.   Related Issues:

       State revenue-sharing with the Seminole Indian Compact relies on continued exclusivity of
       casino-style and Class III gaming. The authorization for full commercial casinos would
       constitute a casino style and Class III gaming expansion and would affect the revenue-sharing
       payments that the Tribe is required to make to the state under the compact. Any cessation or
       reduction of revenue sharing payments upon the expansion of casino gaming would depend on
       the location of the new casinos. It is important to stress that any cessation or reduction of revenue
       sharing payments would only occur when the first Class III or other casino-style game is played.
       The mere authorization of Class III gaming or other casino-style gaming would not affect the
       payments.

       It is also important to note that the state’s expansion of Class-III gaming or casino-style gaming
       would not mean that the state had violated its compact with the Tribe. The compact specifies the
       consequences, particularly the financial ramifications, if the state elects to expand gaming in this
       state, and does not expressly prohibit any such expansion.

       If the Destination Resort Commission approves a destination resort with limited gaming in any
       location outside of Miami-Dade and Broward Counties, all of the Tribe’s revenue-sharing
 BILL: SB 2050                                                                                                                          Page 21

          payments would stop once the first game is played.40 If the Destination Resort Commission
          approves a destination resort with limited gaming inside of Miami-Dade and Broward Counties,
          but the location is not at a pari-mutuel facility, the Tribe would continue to make revenue-
          sharing payments, but the Tribe would exclude the net win from their Broward facilities.
          According to the division, the net win from the Tribe’s Broward facilities equals approximately
          47 percent of the Tribe’s total net win. Therefore, if casino-style gaming were expanded and
          limited to Miami-Dade and Broward Counties, the Tribe’s payments would be reduced by
          approximately 47 percent.

          In addition, if the destination resort with limited gaming is authorized for any location in Miami-
          Dade or Broward counties within the first 5 years of the compact, the guaranteed minimum
          payment and the $1 billion guarantee for the first 5 years of the compact would no longer apply.
          The Tribe’s payments would be based on the applicable percentage of net win.

          Once the new gaming begins at licensed destination resorts, the Tribe may continue to offer the
          covered games authorized in the compact plus any additional games that are authorized for the
          destination resorts.41 The Tribe will have to renegotiate a new Compact for Class III games when
          the Compact expires at the end of its 20-year term,42 but it is not clear what reason the Tribe
          would have to renegotiate the revenue-sharing terms if casino-style gaming is authorized at
          destination resorts in the state. However, the Tribe would have to negotiate a new compact at the
          end of the current compact’s term before it could continue to offer the covered games.43

VIII.     Additional Information:

          A.       Committee Substitute – Statement of Substantial 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.




 40
    See Part XII. A., Gaming Compact, supra n. 29.
 41
    See the definition of covered games at Part III.F.4., Gaming compact, supra at n. 29.
 42
    See Part XVI.B., Gaming Compact, supra at n. 29.
 43
    IGRA at 18 U.S.C. s. 2710(d)(1)(C).


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