ORDINANCE NO. 2008-05
AN ORDINANCE OF THE TOWN OF MELBOURNE BEACH, BREVARD COUNTY,
FLORIDA RELATING TO PUBLIC SERVICE TAXATION; MAKING FINDINGS; AMENDING SECTIONS
14-27, 14-28, 14-30, 14-31, AND 14-32, MELBOURNE BEACH TOWN CODE; REPEALING
SECTION 14-29, MELBOURNE BEACH TOWN CODE; ENACTING A PUBLIC SERVICE TAX ON WATER
SERVICE; REPEALING REFERENCES TO ASSESSMENT OF A PUBLIC SERVICE TAX ON
TELECOMMUNICA-TIONS SERVICES; INCREASING LEVIES; REVISING EXEMPTIONS FROM
TAXATION; REVISING LANGUAGE RELATING TO ASSESSMENT OF INTEREST AND
PENALTIES; READOPTING AND RECONFIRMING
ORDINANCE NO. 98-02, RELATING TO PUBLIC SERVICE TAXES; REPEALING CERTAIN
INCONSISTENT ORDINANCES AND RESOLUTIONS; PROVIDING A SEVERABILITY/ INTERPRETATION
CLAUSE; AND PROVIDING FOR AN EFFECTIVE DATE.
WHEREAS,
in 2007, the Florida Legislature adopted Chapter 2007-321, Laws of Florida, and
the voters of the State of
WHEREAS,
the Town of Melbourne Beach is committed to implementing the desires of the
electorate to cut taxes on real estate;
WHEREAS,
to provide for a balanced budget and to implement budget cuts to realize the
property tax cuts called for, the Town Commission deems it necessary to adopt
this Ordinance;
WHEREAS,
the Town Commission finds that this Ordinance will promote the public health,
safety, welfare, and economic order of the community and is in the public
interest;
WHEREAS,
all conditions precedent to the effectiveness of this levy have been satisfied
by the Town;
WHEREAS,
this Ordinance is adopted pursuant to authority provided for in Article VII,
§1(a) and §9(a), Florida Constitution of 1968, (no tax shall be levied by a
municipality, except as may be permitted by general law); Sections 166.231,
166.232, 166.233, and 166.234, Florida Statutes (2007)(general law providing
for the levy of a public service tax); Article VIII, §2, Florida Constitution
of 1968 (municipal home rule); and Section 166.021, Florida Statutes (1997)
(implementation of municipal home rule), inter
alia;
WHEREAS,
on May ___, 2008, the Town notified the Florida Department of Revenue, in
writing by certified U.S. first class U.S. mail, of the levy to be effectuated
by this Ordinance; and
WHEREAS,
said notification to the Florida Department of Revenue was made upon forms
prescribed by the aforesaid Department.
BE IT ENACTED by the Town of
SECTION
1. That Section 14-27 of the Town Code
of the Town of Melbourne Beach, Florida, is hereby amended to read as follows:
§
14-27. Definitions.
For
the purpose of this article, the following definitions shall apply unless the context
clearly indicates or requires a different meaning.
Fuel adjustment charge means and refers
to all increases in the cost of utility services to the ultimate consumer
resulting from an increase in the cost of fuel to the utility subject to (1997).)
Local telephone service means
and refers to the access to a local telephone system, and the privilege of
telephonic-quality communication with substantially all persons having telephone
or radio telephone stations constituting a part of such local telephone system,
or any facility or service provided in connection with said service. The term "local telephone service"
does not include any service which is a toll telephone service (as defined by
Section 203.012(7), Florida Statutes (1997)); private communication service (as
defined by Section 203.012(4), Florida Statutes (1997)); cellular mobile
telephone or telecommunication service (as defined by Section 203.012(5),
Florida Statutes (1997)); specialized mobile radio; or pagers and paging
service, including but not limited to "beepers" and any other form of
mobile and portable one-way or two-way communication; or teletypewriter service
(as defined by Section 203.012(6), Florida Statutes (1997)). Further, the term "local telephone
service" does not include any public telephone charges collected on site,
access charges, and any customer access line charges paid to a local telephone
company. (Legislative Authority: §203.012, Fla.Stat. (1997).)
Public service tax means and refers to
the tax authorized by Sections 166.231, 166.232, 166.233, and 166.234, Florida
Statutes, on the purchase of: 1) electricity; 2) metered natural gas; 3)
metered or bottled liquified petroleum gas; 4) metered or bottled manufactured
gas; and 5) water service telecommunications services, said
purchases occurring within the municipal limits of the town. (Legislative Authority: §166.231(1)(a), Fla.Stat. (2007).)
Purchase of electricity means and refers
to the purchase of electricity by the person who will consume it within the
town. (Legislative Authority: §166.231(1)(a), Fla.Stat. (2007) (1997).)
Purchase means and refers to every act
or transaction whereby possession of, utilization of, or control over electricity,
metered natural gas, metered or bottled liquified petroleum gas, metered or
bottled manufactured gas, or water service telecommunications
services, which are subject to a public service tax, becomes vested in the
purchaser within the corporate limits of the town for which payment is made
pursuant to a duty and obligation thereof.
Seller means and refers to any person
rendering electricity, metered natural gas, metered or bottled liquified
petroleum gas, metered or bottled manufactured gas, or water service telecommunications
services, which are subject to a public service tax, to a purchaser.
Telecommunications services
means and refers to local telephone service.
(Legislative Authority:
§§166.231(9) and 203.012(5)(a), Fla.Stat. (1997).
SECTION
2. That Section 14-28 of the Town Code
of the Town of Melbourne Beach, Florida, is hereby amended to read as follows:
Sec.
14-28. Public service tax on
electricity, metered natural gas, metered or bottled liquified petroleum gas, and
metered or bottled manufactured gas, and water service.
(a) There is hereby levied by the town within the
corporate limits of the town on each sale of electricity, metered natural gas,
metered or bottled liquified petroleum gas, and metered or bottled
manufactured gas, and water service, a public service tax on the charge
made by the seller thereof, which tax in every case shall be paid by the
purchaser (for the use of the town) at the time of paying the charge
therefor. Said tax shall be computed on
the basis of 9.5% 6.65% of the payments received total charge
made by the seller from to the purchaser for the purchase
of said service.
(b) It shall be the duty of every seller of
electricity, metered natural gas, metered or bottled liquified petroleum gas, or
metered or bottled manufactured gas, or water service, to collect from
the purchaser for the use of the town, the tax levied by this article at the
time of collecting the selling price for each transaction. All such taxes levied and collected during
the preceding month shall be reported and paid over on or before the fifteenth
day of each calendar month to the town manager.
(Legislative Authority:
§166.231(7), Fla.Stat. (2007) (1997).)
(c) It shall be unlawful for any seller to
collect the price of any purchase of electricity, metered natural gas, metered
or bottled liquified petroleum gas, or metered or bottled manufactured
gas, or water service, without at the same time, collecting the tax
levied by this article in respect to such purchase(s) unless such seller shall
elect to assume and pay such tax without collecting such tax from the
purchaser. (Legislative Authority: §166.231(7), Fla.Stat. (2007) (1997).
SECTION
3. That Section 14-29 of the Town Code
of the Town of Melbourne Beach, Florida, is hereby amended to read as follows:
Sec.
14-29. Taxable telecommunication
services; Tax levied. (Repealed).
(Legislative Authority:
Chap. 2000-260, §§36, 38, 39, and 58, Laws of
SECTION
4. That Section 14-31 of the Town Code
of the Town of Melbourne Beach, Florida, is hereby amended to read as follows:
Sec.
14-31. Keeping of records.
(a) Every seller of electricity, metered natural
gas, metered or bottled liquified petroleum gas, metered or bottled
manufactured gas, or water service tele-communications services,
shall keep complete records showing all purchases within the town of such
commodities or services, which records shall show the price charged upon each
purchase and the date thereof, all as set forth by Section 166.234, Florida
Statutes. The records shall be kept for
inspection by the duly authorized agents of the town during the seller's normal
business hours at the official location of the seller's books and records. The duly authorized agents of the town shall
have the right, power, and authority to make such transcripts thereof during
such times as they may desire. Records
shall be retained by the seller for the statutorily required period. (Legislative Authority: §166.234, Fla.Stat. (2007) (1997).)
(b) Each meter or measured service of electricity,
metered natural gas, metered or bottled liquified petroleum gas, metered or
bottled manufactured gas or telephone call, shall constitute a separate
purchase.
SECTION
5. That Section 14-32 of the Town Code
of the Town of Melbourne Beach, Florida, is hereby amended to read as follows:
Sec.
14-32. Exemption from tax.
(a) General. The United States of America, the State of
Florida, and all counties, school districts boards, and municipalities
of the state, public bodies exempted by law or court order, political
subdivisions and agencies, boards, commissions and authorities thereof, and any
recognized church in this state for use exclusively for church purposes, are
hereby exempted from payment of the tax levied by this article. A recognized church that claims one of the
foregoing exemptions to be entitled to the same must certify to the seller that
it qualifies for the exemption, which certification may encompass all purchases
after a specified date or other multiple purchases. A seller accepting the certification required
by this subsection is relieved of the obligation to collect and remit tax, and
a seller is not required to collect tax from such an exempt governmental body. A recognized church that claims an exemption
as set forth in this sub-section shall certify to the seller that said
purchaser qualifies for the exemption, which exemption may encompass all
purchases after a specified date or other multiple purchases. Copies of said certifications and consumer
certifications of exemption shall be maintained by the seller and made
available upon request to the town.
(Legislative Authority: §166.231(5) and (9), Fla.Stat. (2007)
(1997).)
(b) Resale
of telecommunication services. The
purchase of local telephone service or other telecommunication services for use
in the conduct of a telecommunication service for hire or otherwise for resale
is exempt from the tax levied by this article.
(Legislative Authority:
§166.231(9)(e), Fla. Stat. (1997).)
(b)
(c) Fuel adjustment charge. The
public service tax shall not be levied against any fuel adjustment charge
applicable to the purchase of electricity, metered natural gas, metered or
bottled liquified petroleum gas, or metered or bottled manufactured gas,
or water service; provided, that such charge shall be separately stated on
each bill issued by a seller to a purchaser.
(Legislative Authority: §166.231(1)(b), Fla.Stat. (2007) (1997).)
(d) Telecommunication
services; Religious institution with a consumer certificate of exemption. Any religious institution possessing a
consumer certificate of exemption issued pursuant to Chapter 212, Florida
Statutes, is hereby exempted from payment of the public service tax levied upon
telecommunication services by this article.
(Legislative Authority:
§166.231(5), Fla. Stat. (1997).)
(e) Method
of asserting exemption. A purchaser
who claims an exemption as set forth in this section shall certify to the
seller that said purchaser qualifies for the exemption, which exemption may
encompass all purchases after a specified date or other multiple
purchases. In the event of a claim of
exemption from the public service tax on telecommunications services,
presentation of a Chapter 212, Florida Statutes, consumer certification of
exemption shall satisfy the requirements of this sub-section. Copies of said certifications and consumer
certifications of exemption shall be maintained by the seller and made
available upon request to the town.
SECTION
6. That Section 14-33 of the Town Code
of the Town of Melbourne Beach, Florida, is hereby amended to read as follows:
Sec.
14-33. Late return of tax payments by
seller; Interest; Penalties.
(a) Subject to the time limitations and
requirements of s. 166.234, Interest and penalties may be charged by the town to the
seller upon any late payment of tax revenues or filing of a required
return. No interest or penalty shall be
passed thru or passed along to consumer purchasers.
(b) No penalty shall be assessed against a
seller, unless the town manager determines the existence of willful neglect,
willful negligence, or fraud. Said
determination may be appealed to the town commission, if said appeal is filed
within thirty (30) days of the date of the town manager's determination. Penalties may be assessed at a rate of five
percent (5%) per month of the delinquent tax, not to exceed a total penalty of
25 percent, except that in no event shall the penalty for failure to file a
return be less than $15. In the case of
a fraudulent return or a willful intent to evade payment of the tax, the seller
making such fraudulent return or willfully attempting to evade payment of the
tax, shall be liable for a specific penalty of 100 percent (100%) of the
tax.
(c) Interest may be charged at a rate of one
percent (1%) per month of the delinquent tax from the date that the tax was due
until paid.
(d) Interest and penalties shall be computed on
the net tax due after application of any overpayments, and shall be subject to
compromise as provided by law. (Legislative
Authority: §166.234(4), (5), (7), and
(8),
SECTION
7. All provisions of Ordinance No.
98-02, originally adopting public service taxes, are hereby reaffirmed and
readopted, but modified as provided in this Ordinance.
SECTION 8. Severability/Interpretation Clause.
(a) In the event that any term, provision,
clause, sentence or section of this Ordinance shall be held by a court of
competent jurisdiction to be partially or wholly unenforceable or invalid for any
reason whatsoever, any such invalidity, illegality, or unenforceability shall
not affect any of the other or remaining terms, provisions, clauses, sentences,
or sections of this Ordinance, and this Ordinance shall be read and/or applied
as if the invalid, illegal, or unenforceable term, provision, clause, sentence,
or section did not exist.
(b) In interpreting the provisions of this
Ordinance, the following rules and symbols shall apply:
(1) Words underlined are additions to
existing text.
(2)
Words stricken through are
deletions from existing text.
(3) Asterisks (* * *) indicates a deletion from
the Ordinance of text existing in the Code of Ordinances. It is intended that the text in the Code of
Ordinance denoted by the asterisks and not set forth in this Ordinance shall
remain unchanged from the language existing prior to adoption of this
Ordinance.
(c) It is the legislative intent of the Town
Commission that notes marked "Legislative Authority" shall not be
interpreted to be a material part of this Ordinance but are included for ease
of reference by the reader of this Ordinance.
SECTION
9. Ordinances and Resolutions in
Conflict. All ordinances or resolutions
or parts thereof that may be determined to be in conflict herewith, except portions
of the Comprehensive Plan, are hereby repealed.
SECTION
10. Effective Date. Pursuant to Section 166.233(2)(a), Florida
Statutes (2007), a public service tax levy may only become effective on the
subsequent January 1, April 1, July 1, or October 1. Further, no levy may become effective until
120 days after the municipality notifies the Florida Department of Revenue of
same. Consequently, this Ordinance and
Sections 3., 6., 8. 9., and 10., of this Ordinance shall become effective upon
adoption, except that the amendments to Sections 1., 2., 4., 5., and 7., shall
not become effective until
PASSED by the Town Commission of the Town
of Melbourne Beach on first reading on the 21st day of May, 2008, and ADOPTED
by the Town Commission of the Town of Melbourne Beach, Florida, on final
reading on the 18th day of June, 2008.
TOWN OF
By:________________________ William G. Stacey, Mayor
ATTEST:________________________
Lenore
Milan, CMC
Town Clerk