HomeMy Public PortalAbout1997-12 Creating Utility Tax of Chapter 25 Taxation of the VKB CodeORDINANCE NO. 97-12
AN ORDINANCE OF THE VILLAGE OF KEY BISCAYNE,
FLORIDA, CREATING ARTICLE III, "UTILITY TAX"
OF CHAPTER 25 "TAXATION" OF THE VILLAGE CODE,
PROVIDING FOR THE CONTINUED IMPLEMENTATION OF
THE UTILITY TAX AUTHORIZED BY SECTION 166.231,
ET. SEQ., FLORIDA STATUTES, TO CONTINUE TO
LEVY AND IMPOSE UTILITY TAX UPON THE PURCHASE
WITHIN THE VILLAGE OF KEY BISCAYNE OF
ELECTRICITY, WATER, METERED GAS, BOTTLED GAS,
COAL, FUEL OIL AND TELECOMMUNICATIONS SERVICE;
PROVIDING FOR SEVERABILITY; PROVIDING FOR
INCLUSION IN CODE AND PROVIDING FOR AN
EFFECTIVE DATE.
WHEREAS, pursuant to Section 8.04 of the Village Charter of
the Village of Key Biscayne (the "Village"), until otherwise
modified by the Village Council, all municipal taxes and fees
imposed within the Village boundaries by Metropolitan Dade County
(the "County") as the municipal government for unincorporated Dade
County, which taxes and fees were in effect on the date of adoption
of the Village Charter, shall continue at the same rate and on the
same conditions as if those taxes and fees had been adopted and
assessed by the Village; and
WHEREAS, the Village Council finds that the above -cited
Charter provision is effective by operation of law to continue the
levy and imposition of the utility tax (the "Utility Tax") provided
by Section 29-36, et. seq. of the Metropolitan Dade County Code
(the "County Code") as authorized by Section 166.231, et. seq.,
Fla.Stat., upon the purchase in the Village of electricity, water,
metered gas, bottled gas, coal, fuel oil and telecommunications
service (the "Utility Services"), without the necessity for
adoption of an ordinance by the Village; and
WHEREAS, the Village Council has been advised that certain
providers of Utility Services may have concerns regarding the
continued application of Village Charter Section 8.04 pertaining to
the imposition of the Utility Tax and may assert that the adoption
of an enabling ordinance is necessary for the continued levy and
imposition by the Village of such Utility Tax; and
WHEREAS, although the Village Council believes that no further
action is necessary, it wishes to expedite the continued payment of
Utility Taxes to the Village and avoid a lengthy technical debate
with any Utility Service providers; and
WHEREAS, the Village Council finds that the enactment of this
ordinance will protect the public health, safety and welfare of the
residents and inhabitants of the Village and secure revenues which
are due and owing to the Village.
NOW, THEREFORE, BE IT ORDAINED BY THE VILLAGE COUNCIL OF THE
VILLAGE OF KEY BISCAYNE, FLORIDA AS FOLLOWS:
Section 1. That the Village Code is hereby amended by
creating Article III "Utility Tax" of Chapter 25 "Taxation", to
read as follows:.
ARTICLE III. UTILITY TAX
Sec. 25-50. Definitions
For the purposes hereof, the following words
and phrases shall have the meanings
respectively ascribed to them by this section:
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Bottled Gas: All types and kinds of natural,
liquefied petroleum and manufactured gas for
lighting, heating, cooking, power or any other
purpose delivered to any purchaser thereof
within the incorporated area of the Village.
Village: Village of Key Biscayne, Florida.
Coal: All coal for lighting, heating,
cooking, power, energy or any other purpose
competing with any other utility or energy
source taxed under this ordinance delivered to
any purchaser thereof within the incorporated
area of the Village.
Electricity: All electric current or energy
for lighting, heating, cooking, power or any
other purpose delivered to any purchaser
thereof within the incorporated area of the
Village.
Finance Director: The Village Manager or his
designee.
Fuel Oil: All bunker C oil, number 1 and 2
fuel oil, and kerosene or any combination
thereof capable of being used for lighting,
heating, cooking, power or any other purpose
and delivered to any purchaser thereof within
the incorporated area of the Village.
Metered Gas: All types and kinds of natural
and manufactured gas for lighting, heating,
cooking, power or any other purpose delivered
to any purchaser thereof within the
incorporated area of the Village.
Purchase: Every act or transaction whereby
possession of, utilization of, control over or
title to Electricity, Water, Metered Gas,
Bottled Gas, Coal, Fuel Oil,
Telecommunications Service, and the duty and
obligation to pay therefor become vested in
the purchaser within the incorporated area of
the Village, but such term shall not pertain
to nor include any such Purchase act or
transaction when undertaken or performed by an
agency or instrumentality of the United States
Government, the State, the County or a
municipality.
Purchaser: Every person legally liable for
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the payment of Electricity, Water, Metered
Gas, Bottled Gas, Coal or Fuel Oil delivery,
or telecommunications service rendered to such
Purchaser, by a seller, unless such person is
an agency or instrumentality of the United
States Government, the State, the County, a
municipality, or a house of public worship,
which qualifies for exemption from the State
sales tax under Section 212.08(7) (c) (1) ,
Florida Statutes.
Seller: Every person delivering Electricity,
Water, Metered Gas, Bottled Gas, Coal or Fuel
Oil, or rendering Telecommunications Service
to any Purchaser thereof.
Taxable Telecommunications Service:
Purchases within the incorporated area of the
Village of Telecommunications Service which
originates and terminates in this State,
excluding public telephone charges collected
on site, charges for any foreign exchange
service or any private line service except
when such services are used or sold as a
substitute for any telephone company switched
service or dedicated facility by which a
telephone company provides a communication
path, access charges, and any customer access
line charges paid to a local telephone
company. However,
Telecommunications Service as described in
purchases of
subsection (b) of the definition of
Telecommunications Service below shall be
taxed only on the monthly recurring customer
service charges excluding variable usage
charges.
Telecommunications Service means:
(a) Local telephone service, toll telephone
service, including wide -area telephone
service, telegram or telegraph service,
teletypewriter or computer exchange service,
or private communication service; or
(b) Cellular mobile telephone or
Telecommunications Service; or specialized
mobile radio, and pagers and paging, service,
including but not limited to "beepers" and any
other form of mobile and portable one-way or
two-way communication; but does not include
services or equipment incidental to
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Telecommunication Services enumerated in this
paragraph such as maintenance of customer
premises equipment, whether owned by the
customer or not, or equipment sales or rental
for which charges are separately stated,
itemized, or described on the bill, invoice,
or other tangible evidence of the provision of
such service.
Telegraph service: All types and kinds of
services as are rendered by telegraph
companies to any Purchaser of such service
within the incorporated area of the Village.
Telephone service: All types and kinds of
service as are rendered by telephone companies
to any Purchaser of such service within the
incorporated area of the Village, including
service relating to coin -box telephones
installed within the incorporated area of the
Village, insofar as such service requires the
payment of a guaranteed amount, but such term
shall not pertain to nor include the service
rendered at the time of and in consideration
of the deposit of money in the telephone coin -
boxes.
Water service: The water supply furnished to
all consumers in the incorporated area of the
Village for retail use and not for resale,
except water delivered to a Purchaser in a
bottle or other container.
Sec. 25-51. Rate and amount of excise tax
on purchase of public utility
services: Collection of tax.
There is hereby levied and imposed by the
Village upon every purchase in the
incorporated area of the Village of
Electricity, Water, Metered Gas, Bottled Gas,
Coal, Fuel Oil, and Telecommunications Service
included in or reflected by any bill rendered
by the Seller to the Purchaser an excise tax
which shall be determined as follows:
(1) (a)
When the Seller, in accordance
with rules and regulations,
renders a bill to the Purchaser
to cover purchases, except for
purchases of Taxable
Telecommunications Services,
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made during the period of time
to which the bill is
applicable, the amount of
excise tax shall be ten (10)
percent of the total amount
shown on any such bill due and
payable on account of such
purchases (not exceeding four
cents ($0.04) per gallon for
purchases of fuel oil),
exclusive of governmental
charges, annual service fees
collected pursuant to Section
32-54 of the County Code
(pertaining to water service),
and adjustments caused by the
increased cost of energy -
producing fuels, provided such
governmental charges, service
fees, taxes and fuel
adjustments are shown
separately on any such bill.
(b) When the Seller, in accordance
with rules and regulations,
renders a bill to the Purchaser
to cover purchase of Taxable
Telecommunications Service made
during the period of time to
which the bill is applicable,
the amount of excise tax shall
either be seven (7) percent of
the total amount charged for
any Taxable Telecommunications
Service provided within the
incorporated area of the
Village, or seven (7) percent
of the total amount billed for
such Taxable Telecommunications
Service to a telephone or
telephone number or
telecommunications number or
device, or customer's billing
address located within the
incorporated area of the
Village, if the location of the
Taxable Telecommunications
Service provided cannot be
determined.
(2) In the use and application set out
in this section, purchases of
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Electricity, Metered Gas, Bottled
Gas, Coal, Fuel Oil,
Telecommunications Service and Water
Service, shall be considered and
treated as constituting and being
distinct and unrelated classes of
purchases, and in the event that
more than one (1) such class shall
be shown upon the same bill, the
amount of excise tax payable
pursuant hereto shall be determined
and computed for each such class
separately.
(3) The Seller is required and it shall
be Seller's duty to render to each
Purchaser bills covering all such
purchases made, and the amount of
such excise tax shall be entered and
shown by the Seller as a separate
item on each such bill and shall
become due and payable to the
Village whenever such bill becomes
due and payable under the rules and
regulations of the Seller. Each
such bill shall include purchases
applicable to but one (1) location,
or to but one (1) family or business
where more than one (1) family or
business uses separate metered
services at one (1) location in the
incorporated areas of the Village.
(4) The Purchaser is required and it
shall be Purchaser's duty to pay
such excise tax to the Seller, as
agent for the Village, at the time
of the payment of each such bill,
and in the event that the Purchaser
shall fail, neglect or refuse to pay
such excise tax to the Seller when
such bill becomes due and payable,
the Seller is hereby empowered to
discontinue forthwith to make any
further sales or to render any
further service to the Purchaser
until the total amount, including
such excise tax, shown upon such
bill has been paid in full. The
Seller is hereby authorized and
required and it shall be Seller's
duty to collect such excise tax from
such Purchaser at the time of the
payment of each such bill and to
remit the same to the Finance
Department of Village in accordance
with the provisions hereinafter
stated, provided that the Seller
shall have the right and privilege
of assuming and paying such excise
tax itself in lieu of collecting the
same from the Purchaser; and that
whenever the Seller shall fail or
neglect to collect such excise tax
from the Purchaser within one (1)
year from the date of the bill on
which such tax was or should have
been imposed, the Seller shall be
deemed to have assumed such excise
tax itself and shall thereupon
become liable for the payment of the
amount thereof to the Village to the
same extent as if such excise tax
had been collected from the
Purchaser, with further recourse to
the Purchaser therefor.
(5) This section shall be applicable to
all bills for Electricity, Metered
Gas, Bottled Gas, Coal, Fuel Oil,
Taxable Telecommunications Service,
and Water Service; except that any
bills for the purchase of sixteen
(16) ounces or less of Bottled Gas
in a container or less than one (1)
gallon of Fuel Oil shall be exempt
from taxation under this ordinance,
and further in reference to those
purchases enumerated in Section
166.231, Florida Statutes, this
ordinance shall only apply to the
extent permitted therein; the sale
of Fuel Oil and Coal to a public or
private utility; either for resale
or for use as fuel in the generation
of Electricity; or the sale of fuel
used for the propulsion of land,
water or air vehicles or as fuel for
other engines, the use of which does
not compete with those utilities or
energy sources specified in Section
166.231, Florida Statutes. There is
further exempted from the tax hereby
imposed, Fuel Oil and Electricity
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used to operate farm machinery,
irrigation pumps and agricultural
first -processing machinery.
Sec. 25-52. Remittance of tax to Village by
Seller.
Every Seller is hereby required to execute and
file not later than the twentieth day of each
month at the office of the Finance Department
of Village a certified statement on a form
prescribed by such Department, setting forth
the amount of such excise tax to which the
Village became entitled under the provisions
hereof on account of bills paid by Purchasers
during the preceding fiscal month, and
contemporaneously with the filing of such
statements, shall pay the amount of such
excise tax to the Finance Department. Failure
to timely remit the tax shall obligate the
Seller to pay to the Village a penalty of one
(1) percent thereof per month or fraction
thereof during the period of delinquency;
provided, however, that the Village Council
may, by resolution, waive all or part of said
penalty. All collected tax and penalties
shall be deposited to the credit of the
general fund of the Village to be expended for
Village purposes.
Sec. 25-53. Records to be kept.
Every Seller is hereby required to establish
and maintain appropriate accounts and records
showing in such detail as the Finance Director
may prescribe the amount of such excise tax
payable to the Village under the provisions
hereof, and such accounts and records shall
be open to inspection by the Finance Director
or his duly authorized agent at all reasonable
times. The Finance Director is hereby
authorized and empowered to promulgate from
time to time such rules and regulations with
respect to the establishment and maintenance
of such accounts and records as he or she may
deem necessary to carry into effect the
purpose and intent of the provisions hereof.
Sec. 25-54. Reports of deliveries for resale.
Every manufacturer, distributor, wholesaler or
Seller who shall deliver Electricity, Metered
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Gas, Bottled Gas, Coal, Fuel Oil, Telephone
Service, Telegraph Service or Water Service to
any Seller or other person having a place of
business in the incorporated area of the
Village, or licensed to do business therein,
to be sold or resold to ultimate Purchasers,
shall report to the Finance Department semi-
annually, as of June 30th and December 31st,
the names and addresses of such Sellers or
other persons, and the quantities received by
each of them during the preceding six (6)
months, such reports to be filed not later
than one month after the close of each semi-
annual period.
Sec. 25-55. Recognition of expense in
regulation of rates.
(a) All reasonable expense incurred by a
Seller in making the collections and
remittances and in fulfilling the duties
prescribed herein is hereby declared to be and
to constitute an operating expense and shall
be accorded full recognition as such in the
establishment of rates and charges for
rendering Electricity, Metered Gas, Bottled
Gas, Coal, Fuel Oil, or Water Service in the
Village.
(b) For the purpose of compensating the
Seller of Taxable Telecommunications Service,
the Seller shall be allowed one (1) percent of
the amount of the tax collected and due to the
Village in the form of a deduction from the
amount collected for remittance. The
deduction is allowed as compensation for
keeping of records and collection of tax and
remitting the same. To the extent that
Village officials will deem it necessary to
travel out of the Village to examine the
Seller's books and records required to be kept
under Section 25-53 of this ordinance, out of
pocket expenses as a result of such travel
shall be reimbursed to the Village by the
Seller out of this one (1) percent service
charge.
Sec. 25-56. Violations.
It shall be unlawful and a violation hereof
for any Purchaser to evade the payment of the
excise tax provided for herein or any part
10
thereof, or to fail or neglect to pay such
excise tax within thirty (3 0) days after the
same has become due and payable; or for any
Seller to fail or refuse to pay to the Village
all amounts of excise tax payable to the
Village by the Seller, or to fail or refuse to
file the monthly certified statement or to set
forth any erroneous or false information
therein with intent to defraud the Village, or
to refuse to permit the Finance Director or
his or her duly authorized agent to examine
the accounts and records to be kept as
required hereby.
Section 2. Severability. The provisions of this Ordinance
are declared to be severable and if any section, sentence, clause
or phrase of this Ordinance shall for any reason be held to be
invalid or unconstitutional, such decision shall not affect the
validity of the remaining sections, sentences, clauses, and phrases
of this Ordinance but they shall remain in effect, it being the
legislative intent that this Ordinance shall stand notwithstanding
the invalidity of any part.
Section 3. Inclusion in Code. It is the intention of the
Village Council, and it is hereby ordained that the provisions of
this Ordinance shall become and made a part of the Code of the
Village of Key Biscayne, Florida; that the sections of this
Ordinance may be renumbered or relettered to accomplish such
intentions; and that the word "Ordinance" shall be changed to
"Section" or other appropriate word.
Section 4. Effective Date. This ordinance shall be effective
immediately upon adoption on second reading.
PASSED AND ADOPTED on first reading this 1 day of
April 1997.
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PASSED AND ADOPTED on second reading this 29th day of
April , 1997.
. FESTA, MAYOR
A/4/46,,-
ITA ALVAREZ, VILLAGE CLERK
APPROVED AS TO FORM AND LEGAL SUFFICIENCY: \\\**4":'
1%.t‘ ‘14÷A. erer P1011-0
RICHARD JAY WEISS, VILLAGE ATTORNEY
103001\ORDINANC\UTILITY.TAX
12
MIAMI DAILY BUSINESS REVIEW
Published Daily except Saturday, Sunday and
Legal Holidays
Miami, Dade County, Florida.
STATE OF FLORIDA
COUNTY OF DADE:
Before the undersigned authority personally appeared
Octelma V. Ferbeyre, who on oath says that she is the
Supervisor, Legal Notices of the Miami Daily Business
Review f/k/a Miami Review, a daily (except Saturday, Sunday
and Legal Holidays) newspaper, published at Miami in Dade
County, Florida; that the attached copy of advertisement,
being a Legal Advertisement of Notice in the matter of
VILLAGE OF KEY BISCAYNE
PUBLIC NOTICE
AN ORDINANCE CREATING ARTICLE
III, "UTILITY TAX" OF CHAPTER
25 "TAXATION", ETC.
APRIL 29, 1997
in the MOEMX Court,
was published in said newspaper in the issues of
Apr 17, 1997
Affiant further says that the said Miami Daily Business
Review is a newspaper published at Miami in said Dade
County, Florida, and that the said newspaper has heretofore
been continuously published In said Dade County, Florida,
each day (except Saturday, Sunday and Legal Holidays) and
has been entered as second class mall matter at the post
office in Miami in said Dade County, Florida, for a period of
one year next preceding the first publication of the attached
copy of .advertisement; and affiant further says that she has
neither paid • r promised any pe • rm r corporation
any disco , rebate, commissl • • r fund f r the purpose
of sec na advertise = for • ubllca on in the said
new
17
ay of
(SEAL)
Octelma V. Fe
and subscribed before me this
ril 97
D. 19
•
OFFICIAL NOTARY SEAL
JANETT LLERENA
Imowr)tiIt+ti btaor4 NuMBEH
CC566004
cb.S.' MY COMNIISSION EXPIRES
OF F%.9 JUNE 23,200o
VILLAGE OF KEY BISCAYNE
PUBLIC NOTICE
Notice is hereby given that the following ordnance will be consid-
ered on Second Reading:by the Key Biscayne Village Council at a
meeting to be held on Tuesday, April 29, 1997, at 7:00 p.m., in the
Council Chamber, located at 85 West McIntyre Street, Second Floor,
Key Biscayne, Florida: '
AN ORDINA THE VILLAGE OF .KEY-BISCAYNE,
FLORIDA; NG ARTICLE III, "UTILITY TAX" OF
CHAPTER 25- "TAXATION" OF THE VILLAGE:. CODE,
PROVIDING COME CONTINUED IMP1.EMENTATiON OF
THE UTILITYTAX AUTHORIZED BY SEA 166231, ET.
SEQ., FLORID4$TATUTES, TO CON UE4 iLEVY AID
IMPOSE UT1LIFI tTAX UPON THE WITHIN
THE VILLAGE' Olt KEY BISCAYNE FUEL OIL
WATER, METERED# AS, BOTTLED G
AND TELEC ATIONS SERV r n DINGi FOR
SEVERABILItY VIDING FOR 1 MI TIC
CODE AND PA Cs FOR AN EFF ,DATE..
Interested parties-aire d to appear andbe A copy of the
proposed ordinance, i%1be obtained at Village HER, Office of the Vil-
lage Clerk, 91 We tt*Intyre Street, Suite 201 Bye, Florida
33149. Interested** may appear at the Hearing and be
heard with respect to the proposed ordinance.
In accordance with the Americans With Disabilities Act ,of 1990, all
persons who are disabled and who need special ,accommodalions
contactto
�
participate in this proceeding because of that di ihty should
the Office of the Village Clerk, 91 West McIntyre Street, Suite 201,
Key Biscayne, Florida 33149, telephone number (305) 365-5506, not
later than two business days prior to such proceedng..
Should any person desire to appeal any decision of the Village
Council with respect to any matter to be considered at this meeting,
that person shall insure that a verbatim record of the proceedings is
made including all testimony and evidence upon which any appeal
may be based (F.S. 286.0105).
4/17
Conchita H. Alvarez
Village Clerk
97-4-041779M