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Agenda 07/22/2008 Item #16J 6Agenda Item No. 16,16 July 22, 2008 Page 1 of 10 EXECUTIVE SUMMARY Recommendation to have the Board of County Commissioners approve the refund of $4,133.06 to three (3) vendors providing food and drink concessionaire services at four (4) Parks locations. OBJECTIVE: To have the Board of County Commissioners approve the refund of $4,133.06 to three (3) vendors providing food and drink concessionaire services at four (4) Parks locations. This amount represents sales tax collected on lease payments received between November 2006 and September 2007. CONSIDERATIONS: During the September 25, 2007 meeting, the Board of County Commissioners approved a $12,296.94 refund to five (5) vendors providing food and drink concessionaire services at seven (7) Parks and Library locations. The refund became necessary due to a sales tax exemption for concessionaires providing food and drink services at recreational facilities. Subsequently, Collier County filed an application for refund with DOR, which represented sales tax collected on lease payments received from November 2003 through October 2006. This period was selected due to DOR regulations limiting the amount eligible for refund to a three year period prior to the filing date. The DOR Refund Division approved this application for refund in August 2007. While waiting for the DOR Refund Division to review this application for refund, Collier County continued to collect and remit sales tax on the concessionaire lease payments. This period covered November 2006 (application filing date) to August 2007 (DOR approval date). Since DOR approved the application for refund, the sales tax collected from November 2006 to August 2007 should also be refunded back to each concessionaire. During this period, there were three (3) vendors operating at four (4) Parks locations under contract with the County to provide food and drink concessionaire services. These vendors (locations) were: • Day -Star Unlimited, Inc. d/b /a Cabana Dan's (Vanderbilt Beach) • Recreational Facilities of America, Inc. ( Barefoot Beach & Tigertail Beach) • That's Amore' in Napoli, Inc. (Golden Gate Aquatic Center) Collier County filed a second application for refund in the amount of $4,133.06 with the DOR Refund Division on November 21, 2007. The Clerk of Courts Finance Department has received confirmation from the DOR Refund Division that a refund in this amount will be issued to Collier County pending receipt of proof that the County has refunded the sales tax to each vendor. For further information regarding the criteria used to determine the eligibility to receive refunds of sales tax collected on concessionaire lease payments, please see the Executive Summary from the September 25, 2007 meeting (included). Agenda I!em No. 16J6 July 22. 2008 Page 2 of 10 FISCAL IMPACT: The total amount of the refund is $4,133.06. This amount has been authorized for refund by DOR so there will be no fiscal impact to the County. The breakdown by vendor is as follows: TOTAL = $4,133.06 GROWTH MANAGEMENT IMPACT: There will be no growth management impact with this refund. RECOMMENDATION: Board of County Commissioners: 1) approve the refund of $4,133.06 to three (3) vendors providing food and drink concessionaire services at four (4) Parks locations; 2) approve the sales tax refund request submitted to the DOR Refund Division; and 3) recognize the refund as revenue when funds are received from the DOR Refund Division. PREPARED BY: Clerk of Courts Finance Department Attachments: TAA #07A -002 September 25, 2007 Agenda Item 16 J 5 Executive Summary Contract Total Sales Concessionaire Collier County Facility Status Tax Collected 1) Day -Star Unlimited Inc. Vanderbilt Beach Current $1,178.54 d/b /a Cabana Dan's 2) Recreational Facilities Barefoot Beach Current $720.43 of America, Inc. Ti ertail Beach Current $1,874.84 3 That's Amore' in Napoli, Inc. Golden Gate Aquatic Current 1 $359.25 TOTAL = $4,133.06 GROWTH MANAGEMENT IMPACT: There will be no growth management impact with this refund. RECOMMENDATION: Board of County Commissioners: 1) approve the refund of $4,133.06 to three (3) vendors providing food and drink concessionaire services at four (4) Parks locations; 2) approve the sales tax refund request submitted to the DOR Refund Division; and 3) recognize the refund as revenue when funds are received from the DOR Refund Division. PREPARED BY: Clerk of Courts Finance Department Attachments: TAA #07A -002 September 25, 2007 Agenda Item 16 J 5 Executive Summary Page 1 of 1 Agenda Item No. 16J6 July 22, 2008 Page 3 of 10 e-//C-\ A uenrlaTect \Fxnnrt \111_lydv04,00 0 /OiOoRUA A( -iAtt oltcnnno COLLIER COUNTY BOARD OF COUNTY COMMISSIONERS Item Number: 16J6 Item Summary: Recommendation that the Board of County Commissioners approves the refund of $4.133.06 to three (3) vendors providing food and drink concessionaire services at four (4) Parks locations. Meeting Date: 7/22/2008 9 00:00 AM Prepared By Ronald Dorton Senior Internal Auditor Date Clerk of Courts Clerk's Finance 7/3/2008 11:31:38 AM Approved By Crystal Kinzel Director of Finance Date Clerk of Courts Finance 71312008 12:36 PM Approved By John A. Yonkosky Director of the Office of Management Date County Manager's Office Office of Management & Budget 711412 00 8 10:22 AM Approved By James V. Mudd County Manager Date Board of County Commissioners County Manager's Office 7/14/2008 11:00 AM e-//C-\ A uenrlaTect \Fxnnrt \111_lydv04,00 0 /OiOoRUA A( -iAtt oltcnnno DEPARTMENT OF REVENUE Jim Zingale Executive Director Crystal K. Kinzel Finance Director February 19, 2007 Collier County Clerk of the Circuit Court 3301 Tamiami Trail East P.O. Box 413044 Naples, Florida 34101 -3044 Re: Technical Assistance Advisement 07A -002 Collier County ( "County ") Concessionaire Services at Publicly Owned Recreational Facilities Sales and Use Tax Section 212.031, Florida Statutes ( "F.S. ") Dear Ms. Kinzel: Aoenda Item No. 16J6 July 22 2008 Page 4 of 10 General Tax Administration Child Support Enforcement Property Tax Administration Administrative Services Information Services This response is in reply to your letter dated December 19, 2006, requesting the Department's issuance of a Technical Assistance Advisement ( "TAA ") pursuant to Section 213.22, F.S., and Rule Chapter 12 -11, F.A.C., regarding the Department's position on the issue of the exemption found in Section 212.031(1)(a)l0., F.S. An examination of your letter has established that you have complied with the statutory and regulatory requirements for issuance of a TAA. Therefore, the Department is hereby granting your request for issuance of a TAA. Along with your letter, you provided us with a copy of "concession agreements" between County and food and drink concessionaires operating at County- owned: beaches; aquatic center; and library. ISSUE Is the consideration paid to County by persons providing food and drink concessionaire services within the premises of publicly owned recreational facilities exempt from Florida sales tax by Section 212.031(l)(a)10., F.S.? O G�\J� p01 a Tallahassee, Florida 32399 -0100 Agenda Item No. 16J6 July 22, 2008 Technical Assistance Advisement Page 5 of 10 Page 2 FACTS County has entered into "concession agreements" with various persons who provide food and drink concessionaire services at Comity owned facilities. The facilities include beaches ( "Tigertail Beach," "Vanderbilt Beach," and "Barefoot Beach "), an aquatic center ( "Golden Gate Aquatic Center ") and a library (the "Orange Blossom Library "). Each of the facilities is owned by County. Your letter of December 19, 2006, provides, in part: The lease agreement with each concessionaire contains a "Scope ", "Consideration ", and "Use of Facility" section. The "Scope" section states that the County grants the limited right for the concessionaire to operate at a designated location. Furthermore, the section defines the services to be provided by the concessionaire, including the sale offood and /or beverages. The "Consideration" section states that the concessionaire shall remit to the County, a percentage of the total gross revenue of the concessionaire's business, including the sale of food, beverage and sundry concession operation as follows: a flat fee or percentage of gross receipts (except sales tax) whichever is greater. The applicable Florida State Sales Tax on payments to the County shall be added to the concessionaire's payment and forwarded to the County as part ofsaid payments. Said payments shall be tendered to the County by the 15th of each month for the preceding month. The "Use of Facility" section states that the facility is for the use of the public for recreational and other public purposes. [italics in original] REQUESTED ADVISEMENT Your letter of December 19, 2006, provides that County "... is requesting a Technical Assistance Advisement regarding the sales tax exemption for rental /license fees assessed on concessionaire contracts operating at publicly owned recreational facilities" APPLICABLE STATUTES AND RULES Section 212.031, F.S., provides in part: (1)(a) It is declared to be the legislative intent that every person is exercising a taxable privilege who engages in the business of renting, leasing, letting, or granting a license for the use of any real property unless such property is: Agenda Item No. `6J6 July 22, 2008 Technical Assistance Advisement Page 6 of 10 Page 3 10. Leased, subleased, licensed, or rented to a person providing food and drink concessionaire services within the premises of a convention hall, exhibition hall, auditorium, stadium, theater, arena, civic center, performing arts center, publicly owned recreational facility, or any business operated under a permit issued pursuant to chapter 550.... The issue presented in your request is whether the consideration received by County from concessionaires providing food and drink services at County owned recreational facilities is exempt from Florida sales tax. Persons engaging in the business of renting, leasing, letting, or granting licenses for the use of any real property are exercising a taxable privilege. See Section 212.031, F.S. An exemption from the tax otherwise imposed for this privilege involves property that is leased, subleased, licensed or rented to persons providing food and drink concessionaire services within the premises of a publicly owned recreational facility. See Section 212.031(1)(a)10., F.S. "Exemptions to taxing statutes are special favors granted by the Legislature and are to be strictly construed against the taxpayer." State ex rel. Szabo Food Services, Inc. v. Dickinson, 286 So. 2d 529, 530 (Fla. 1973). Because no definition of "recreational facility" is provided by statute, it is necessary to look to principles of statutory construction. Words of common usage, when used in a statute, should be construed in their plain and ordinary sense. Pederson v. Green, 105 So.2d 1 (Fla. 1958). The word "recreation" is defined in Merriam - Webster's Collegiate Dictionary (Tenth Edition, 1999) as meaning: ... refreshment of strength and spirits after work; also: a means of refreshment or diversion: HOBBY — recreational ... adj Merriam - Webster's defines the word "facility" as meaning: ... something (as a hospital) that is built, installed, or established to serve a particular purpose. Id. We also note that no definition of the word "concessionaire" is provided by statute. Merriam - Webster's Collegiate Dictionary (Tenth Edition, 1999) defines "concessionaire" as meaning: [T]he owner or operator of a concession; esp: one that operates a refreshment stand at a recreational center. County's beaches, aquatic centers and libraries all fall within the plain and ordinary meaning of `recreational facility," as each is a place built, installed or established to serve Technical Assistance Advisement Page 4 Agenda Item No. 16,16 July 22, 2008 Page 7 of 10 the purposes of refreshing strength and spirit and for providing diversion. The beaches, aquatic center and library are publicly owned (i.e., owned by County). The persons granted the right to provide food and drinks at these facilities are concessionaires. The consideration paid by the concessionaires to County, at County -owned beaches (specifically, "Tigertail Beach," "Vanderbilt Beach," and "Barefoot Beach "), aquatic center ( "Golden Gate Aquatic Center ") and library (the "Orange Blossom Library ") is not subject to Florida sales tax (otherwise imposed by Section 212.031, F.S.) because the "concession agreements" fall within the scope of the exemption found at Section 212.031(1)(a)10., F.S. This response constitutes a Technical Assistance Advisement under Section 213.22, F.S., which is binding on the Department only under the facts and circumstances described in the request for this advice as specified in Section 213.22, F.S. Our response is predicated on those facts and the specific situation summarized above. You are advised that subsequent statutory or administrative rule changes, or judicial interpretations of the statutes or rules, upon which this advice is based, may subject similar future transactions to a different treatment than expressed in this response. You are further advised that this response, your request and related backup documents are public records under Chapter 119, F.S., and are subject to disclosure to the public under the conditions of Section 213.22, F.S. Confidential information must be deleted before public disclosure. In an effort to protect confidentiality, we request you provide the undersigned with an edited copy of your request for Technical Assistance Advisement, the backup material and this response, deleting names, addresses and any other details which might lead to identification of the taxpayer. Your response should be received by the Department within 15 days of the date of this letter. SZ_ , a2 Eric �R•.- PPeeate Senior Attorney Technical Assistance and Dispute Resolution (850) 922 -4714 Ctrl # 27389 Agenda Item No. 16,16 July 22, 2008 : zs .o` EXECUTIVE SUMMARY Recommendation to have the Board of County Commissioners approve the refund of $12,296.94 to five (5) vendors providing food and drink concessionaire services at seven (7) Parks and Library locations. OBJECTIVE: To have the Board of County Commissioners approve the refund of 512.296.94 to five (5) vendors providing food and drink concessionaire services at seven (7) Parks and Library locations. This amount represents sales tax collected on lease payments received during a three (3) year period, as limited by the Florida Department of Revenue. CONSIDERATIONS: Florida Statute 212. 031(1)(a)10 allows for an exemption from paying sales tax on lease payments if "such properr is leased, sub - ];.aced, licensed, or rented to a person providing food and drink concessionaire services within the premises of a ... publicly owned recreational facility. ". The Clerk of Courts Finance Department (Clerk's Finance) has reviewed contracts on file to identify vendors providing 'rood and drink concessionaire services at County owned recreational facilities. This review identified seven (7) contracts (both in effect and expired) with five (5) different vendors operating at various Parks & Recreation and Library facilities: • Cool Concessions. Inc. (Caxambas Pass Marina & TigcrtaiI Beach) • Day -Star Unlimited. Inc. d;b;'a Cabana Dan's (Vanderbilt Beach) • Recreational Facilities of ,America. Inc. ( Barefoot Beach & Tigertail Beach) • That's Amore' in Napoli, Inc. (Golden Gate Aquatic Center) • Paradise Consultant's, Inc. (Orange Blossom Librar)) These vendors are required by contract to pay Collier County either a flat fee or a percentage of gross receipts, whichever is greater (e.g. S500 or 12% of monthly gross receipts). This amount constitutes the vendor's monthly lease payment. Clerk's Financc then evaluated whether each vendor is paying sans tax on these lease payments. A review of documentation on file confirmed that each vendor is paying 6-00% sales tax on the lease payment amount. Collier County has been collecting sales tax on these payments, with the funds remitted to the Florida Department of Revenue (DOR) on a monthly basis. Based on the Fiorida Statute cited previously, Clerk's Finance concluded that these ]ease payments are exempt from sales tax, In order to clarify our inte :p;vtatirn, Clerk's Finance requested a Technical Assistance Advisement (TAA) from the DOR LcLal Division. After reviewing each vendor's concessionaire ]ease agreement, the DOR Lcgal Division issued TAA :Li07A -002 that n reod with Clerk's Finance conclusion that these ]case payments are exempt from sales tax. Agenda Item No. 16,16 July 22, 2008 7 The DOR Refund Division agraed that a sales tax refund is in order. However, the DOR Refund Division does not refund sales tax directly to an individual or business, but rather to the governmental units that collect and remit sales tax. Also, the DOR Refund Division requires proof that the governmental units have refunded the sales tax to the vendors prior to giving any refund. Clerk's Finance has received verbal confirmation that the DOR Refund Division will refund the requested amount to Collier County once it receives proof that the County has refunded the sales tax to each vendor. Clerk's Finance has consulted with the County Attorney's Office and determined that the vendors' concessionaire agreements do not need to be amended. FISCAL IMPACT: The total amount of the refund is SI2?96.94. The DOR Refund Division limits sales tax refunds to a period of three (3) years prior to the date the refund request was filed. Consequently, the refund encompasses the period of November 2003 to October 2006. The breakdo\cn by vendor is as lollows: TOTAL= 512,296.94 GROWTH MANAGEMENT IMPACT: There will be no Lrowth mana -ement impact with this refund. RECOMMENDATION, The Clerk of Courts Finance Department recommends that the Board of County Commissioners: 1) approve the refund of S 12?96.94 to five (5) vendors providing food and drink concessionaire services at seven (7) Parks and Library locations: 2) approve the sales tax refund request submitted to the DOR Refund Division; and 3) recognize the refund as revecuc %ahon funds are received from the DOR Refund Division. PRFPARFD BY: Clerk of Courts Finance Department Attachments: TA.A =i017A -003 Contract Total Sales Concessionaire Collier Counh, Facility Status Tax Collected 1) Cool Concessions, Inc. Caxambas Pass Marina Terminated TiRertail Beach Terminated 54 O1 I.08 2) Day -Star Unlimited Inc. Vanderbilt Beach Current 53.810.70 drb:'a Cabana Dan's 3) Recreational Facilities Barefoot Beach Current 52,038.97 of America. Inc. Tiuetail Beach CUITent 5343.74 4) That's ,Amore' in Na. oli. Inc. Golden Gate Aquatic Current $1,636,.45 5) Paradise Consultants• hhc. Oran *e Blossom Library Teminated $456.00 TOTAL= 512,296.94 GROWTH MANAGEMENT IMPACT: There will be no Lrowth mana -ement impact with this refund. RECOMMENDATION, The Clerk of Courts Finance Department recommends that the Board of County Commissioners: 1) approve the refund of S 12?96.94 to five (5) vendors providing food and drink concessionaire services at seven (7) Parks and Library locations: 2) approve the sales tax refund request submitted to the DOR Refund Division; and 3) recognize the refund as revecuc %ahon funds are received from the DOR Refund Division. PRFPARFD BY: Clerk of Courts Finance Department Attachments: TA.A =i017A -003 rt!.CA16hda Item No. 16J6 July 22, 2008 Page 10 of 10 Item Number ❑e. S....': Me.b., D.W: P,,.,d It, Cr) ZWI Km¢rd COLLIER COUNTY r. D" Oi AM ❑.01cm, .1 •.rurre P,ru—.. cme 9'17;201)7 9:C,4 27 AM Approved Oy Approved U.• I rl.�d C-1, I.u:.", LI eu, 3as K, r! Lvunq