An Ordinance of the Town of Indialantic, Brevard County, Florida, Relating to Business

ORDINANCE NO. 2016-11

AN ORDINANCE OF THE TOWN OF INDIALANTIC, BREVARD COUNTY, FLORIDA, RELATING TO BUSINESS TAXES; MAKING FINDINGS;AMENDING SECTIONS9-11 and 9-12, CODE OF ORDINANCES OF INDIALANTIC, FLORIDA; DECREASING OR ELIMINATING CERTAIN TAXES; PROVIDING EXEMPTIONS PURSUANT TO FLORIDA LAW; PROVIDING A SEVERABILITY/INTERPRETATION CLAUSE; AND PROVIDING FOR AN EFFECTIVE DATE.

WHEREAS, Article VII, Section 1(a) of the Florida Constitution provides that local governments may only tax when the Constitution, or a general law adopted by the Legislature, has authorized the taxation. City of Tampa v. Birdsong Motors, 261 So.2d 1 (Fla. 1972);

WHEREAS, the Attorney General has ruled several times that “Florida follows the general rule that taxes may be levied, assessed, and collected only in the manner prescribed by statute.” (emphasis supplied); AGO 99-72 nn.9 and 12; see also AGO 2010-41 n.8 (assessment of business taxes); see alsoWalter E. Heller & Company Southeast, Inc. v. Williams, 450 So.2d 521 (Fla 3d DCA 1984), rev. denied, 462 So.2d 1108 (Fla. 1985); State ex rel. Seaboard Air Line R. Co. v. Gay, 35 So.2d 403 (Fla. 1948); Maas Brothers, Inc. v. Dickinson, 195 So.2d 193 (Fla. 1967); Alsop v. Pierce, 19 So.2d 799, 805-06 (Fla. 1944); Dobbs v. Sea Isle Hotel, 56 So.2d 341, 342 (Fla. 1952); Thayer v. State, 335 So.2d 815, 817 (Fla. 1976);

WHEREAS,Chapter 205, Florida Statutes, provides a lengthy and finite method by which business taxes may be levied or increased, but Section 205.0535(5), Florida Statutes, provides that:

This chapter does not prohibit a municipality or county from decreasing or repealing any business tax authorized under this chapter. By majority vote, the governing body of a county or municipality may adopt an ordinance repealing a local business tax or establishing new rates that decrease local business taxes and do not result in an increase in local business taxes for a taxpayer. . . .;

WHEREAS, the Town Council finds it in the public interest to codify exemptions from the business tax and to eliminate or revise the tax schedule consistent with Florida law; and

WHEREAS, it is the intent of the Town Council, as permitted by Florida law, to assess a business tax against classifications of employees who were assessed prior to October 13, 2010,

BE IT ENACTED BY THE TOWN OF INDIALANTIC, FLORIDA:

SECTION 1. That Section 9-11 of the Code of Ordinances of Indialantic, Florida, is hereby amended to read:

Sec. 911. Schedule of business taxes.

The following enumerated business taxes shall be paid for the following named classifications of businesses, occupations and professions. Said rates or amounts are annual unless otherwise specified.

(1) APARTMENTS and/or other rental units, furnished or unfurnished,BED AND BREAKFAST, HOTELS and MOTELS. Any concessionshallconstitute a separate business.

(A) Apartment with 5 or fewer units ……………………60.00

(B) Apartment with more than five units … 100.00

(2) ARTISTS……………………………………………………………………………………………… 30.00

(3)ATM’s (Automatic Teller Machines)(not located on the premises of a bank, credit union, savings and loanassociation, or similar financial institution)…………………………………………………………… 35.00

(4)AUCTIONEERS - (A) Resident, perear…………30.00

(B) Itinerant, per day…………………………………………………………….. 30.00

(5) BAIL BONDSMEN………………………………………………………………………………… 100.00

(6)BANKS, SAVINGS AND LOAN INSTITUTIONS, TRUST COMPANIES OR

SIMILAR FINANCIALESTABLISHMENTS………………………………………………… 200.00

(7)BARBERS or BEAUTY SALON

(A) Shop (includes the first hairstylist) 50.00

(B) Each hairstylist(except as provided in sub-section 9-12(b),who is an independent contractor and not an employee)………………………………………………………………………………………………………………… 20.00

(8)CONTRACTORS……………………………………………………………………………… 75.00

(9) DRUG STORES…………………………………………………………………………… 200.00

(10)GROCERY STORES…………………………………………………………………… 200.00

(11)HOME OCCUPATIONS……………………………………………………………… 25.00

(12)INSURANCE

(A) Agency ………………………………………………………………………… 60.00

(B) Each individual agent(except as provided in sub-section 9-12(b), who is an independent contractor and not an employee)………………………………………………………………………………………………………………… 30.00

(C) Company………………………………………………………………………………… 60.00

(13)LIQUOR DEALER (includes cocktail lounges and package stores)…………………………………………………………………………………………………………………………… 50.00

(14) MERCHANTS, including but not limited to: Abstract or Title Companies; Air conditioning equipment sales; Aquariums and supplies; Arms dealers; Arts and crafts; Bakeries; Book agents or salesmen; Bottled water; Bridal services; Candy shops; Carpeting; China and crystal; Cigar, cigarette, and tobacco at retail, whether in connection with any other business or not; Convenience store; Dry cleaning establishments; Dry goods store; Electric appliances; Electronic sales and service; Fabric shops; Florists; Furniture stores; Gas dealers or distributors; Gasoline filling stations without regard to the number of pumps; Gasoline, kerosene distillate, furnace oil or fuel oil dealers or distributors; Gift shops; Glassware; Greeting cards; Gunsmiths, repairing guns and sporting goods; Hardware stores; Hearing aids and service; Heating equipment; Hobby shops; Hosiery and lingerie; Housewares; Jewelry stores; Laundromat; Maternity wear; Miscellaneous dealers, repairers and repair shops; Motion picture theater; Music store; Newspaper and magazine distributor; Office supplies; Paints; Photo finishing and supplies; Plastics; Salesmen including distributors (meaning any salesman or agent who warehouses a product within the town limits and does business by distributing such stocks after sale by himbut who is not an employee of such business, except as provided in sub-section 9-12(b)), salesman or agent who sells merchandise andwho maintains a business office other than his homebut who is not an employee of such business, except as provided in sub-section 9-12(b), order offices, representing mail order housesor any person engaged in the business of collecting accountsbut who is not an employee of such business, except as provided in sub-section 9-12(b); Seafood and produce market; Sportswear and sporting goods; Stereo centers; Swimming pool equipment; Tackle, fishing and marina supply stores; Television sales and service;Ten cent stores; Water softener sales or services…………………………………………………………………… 50.00

(15) PROFESSIONAL SERVICES, including but not limited to: Accountants; Advertising; Architects; Attorneys; Auditors; Business Office; Designers; Bonds and stocks brokers or salesmen; Chiropractors; Claim and collecting agencies: Credit association (firms or corporations, or agents thereof, supplying information or collecting accounts for members); Decorators; Dentists; Employment agencies; Engineers; Massage and therapist; Optician; Optometrists; Osteopaths; Photographer; Physicians; Piano tuner; Publisher; Stenographer; Surveyor; Tailor;Travel agencies 50.00

(16) REAL ESTATE AGENTS AND BROKERS-

(A) Brokerage (includes the first broker)…………………………………… 50.00

(B) Each agent..………………………………………………………………………. 30.00

(17) RESTAURANTSincluding but not limited to sitdownrestaurants anddelicatessens……………………………………………………………………60.00

(18) RESTAURANTS serving alcohol…………………………………… 60.00

(19) RESTAURANTS with drivethrough window…………… 60.00

(20) TAXI and LIMOUSINES

(A) First car………………………………………………………………………………… 75.00

(B) Each additional car ………………………………………………………… 10.00

(21) TELEPHONE COMPANIES………………………………………………………… 150.00

(22) VENDING MACHINES (each machine)………………………… 30.00

SECTION 2. That Section 9-12 of the Code of Ordinances of Indialantic, Florida, is hereby amended to read:

Sec. 912. Schedule of business taxes; exemptions.

(a)All persons engaging in any business, occupation, profession, or avocation of such nature that no business tax receipt can be properly required for it pursuant to section 911 above shall pay a business tax of fifty dollars ($50.00); provided, . that business taxes shall only be levied on businesses, occupations, professions, or avocations meeting one of the three categories set forth in section 205.042. Florida Statutes.

(b)Employees. An individual who engages in or manages a business, profession, oroccupation as an employee of another person is not required to apply for an exemption from a local business tax, pay a local business tax, or obtain a local business tax receipt. An individual acting in the capacity of an independent contractor is not an employee for purposes of the assessment of a business tax. Notwithstanding any provisions in section 9-11, the exemption provided in this sub-section and section 9-11 does not apply to a business tax imposed on individual employees by a municipality, excepting real estate broker associates or sales associates, pursuant to an ordinance adopted before October 13, 2010. To the extent that the town, prior to October 13, 2010, had a classification system that was in compliance with the requirements of chapter 205, Florida Statutes, and that actually resulted in individual employees paying a business tax may continue to impose such a tax in that mannerSee §205.066, Fla.Stat.

(c)Real estate broker associate or sales associate, An individual licensed and operating as a broker associate or sales associate under chapter 475 is not required to apply for an exemption from a local business tax, pay a local business tax, or obtain a local business tax receipt. See §205.067, Fla.Stat.

(d)Sale of farm, aquacultural, grove, horticultural, floricultural, tropical piscicultural, or tropical fish farm products, or products manufactured therefrom, except intoxicating liquors, wine, or beer. A local business tax receipt is not required of any person for the privilege of engaging in the selling of farm, aquacultural, grove, horticultural, floricultural, tropical piscicultural, or tropical fish farm products, or products manufactured therefrom, except intoxicating liquors, wine, or beer, when such products were grown or produced by such person in the state. A wholesale farmers’ produce market may pay a tax of not more than $200 for a receipt that will entitle the market’s stall tenants to engage in the selling of agricultural and horticultural products therein, in lieu of such tenants being required to obtain individual local business tax receipts to so engage. See §205.064, Fla.Stat.

(e)Charitable organizations; Occasional sales, fundraising. A business tax receipt is not required of any charitable, religious, fraternal, youth, civic, service, or other similar organization that makes occasional sales or engages in fundraising projects that are performed exclusively by the members, and the proceeds derived from the activities are used exclusively in the charitable, religious, fraternal, youth, civic, and service activities of the organization. A “charitable institution” means only nonprofit corporations operating physical facilities in this state at which are provided charitable services, a reasonable percentage of which are without cost to those unable to pay. See §§205.022; 205.192, Fla.Stat.

(f)Exemption allowed certain disabled persons, the aged, and widows with minor dependents. All disabled persons physically incapable of manual labor, widows with minor dependents, and persons 65 years of age or older, with not more than one employee or helper, and who use their own capital only, not in excess of $1,000, may engage in any business or occupation in counties in which they live without being required to pay a business tax. The exemption provided by this sub-section shall be allowed only upon the certificate of the county physician, or other reputable physician, that the applicant claiming the exemption is disabled, the nature and extent of the disability being specified therein, and in case the exemption is claimed by a widow with minor dependents, or a person over 65 years of age, proof of the right to the exemption shall be made. Any person entitled to the exemption provided by this section shall, upon application and furnishing of the necessary proof as aforesaid, be issued a receipt which shall have plainly stamped or written across the face thereof the fact that it is issued under this sub-section, and the reason for the exemption shall be written thereon. See §205.162, Fla.Stat.

(g)Exemptions allowed disabled veterans of any war or their unremarried spouses. Any bona fide, permanent resident elector of the state who served as an officer or enlisted person during any of the periods specified in s. 1.01(14), Florida Statutes, in the Armed Forces of the United States, National Guard, or United States Coast Guard or Coast Guard Reserve, or any temporary member thereof, who has actually been, or may hereafter be, reassigned by the air force, army, navy, coast guard, or marines to active duty during any war, declared or undeclared, armed conflicts, crises, who was honorably discharged from the service of the United States, and who at the time of said person’s application for a business tax receipt is disabled from performing manual labor shall, upon sufficient identification, proof of being a permanent resident elector in the state, and production of an honorable discharge from the service of the United States be granted a business tax receipt to engage in any business or occupation in the town which may be carried on mainly through the personal efforts of the receiptholder as a means of livelihood and for which the town business tax receipt does not exceed the sum of $50 without payment of any business tax otherwise provided for by law. When such person applies for a receipt to conduct any business or occupation for which the town business tax exceeds $50, the remainder of such tax in excess of $50 shall be paid in cash. Such receipt when issued shall be marked across the face “Veterans Exempt Receipt” — “Not Transferable.” Before issuing the receipt, proof shall be duly made that the applicant is entitled under this law to receive the exemption. The proof may be made by establishing to the satisfaction of the town by means of certificate of honorable discharge or certified copy thereof that the applicant is a veteran within the purview of this sub-section and by exhibiting a certificate of government-rated disability to an extent of 10 percent or more; an affidavit or testimony of a reputable physician who personally knows the applicant and who makes oath that the applicant is disabled from performing manual labor as a means of livelihood; a certificate of the veteran’s service officer of the county in which the applicant lives, duly executed under the hand and seal of the chief officer and secretary thereof, attesting the fact that the applicant is disabled and entitled to receive a receipt within the meaning and intent of this sub-section; a pension certificate issued to said person by the United States government by reason of such disability; or such other reasonable proof as may be required by the town to establish the fact that such applicant is disabled. The unremarried spouse of a deceased disabled veteran of any war in which the United States Armed Forces participated is entitled to the same exemptions as the disabled veteran. See §205.171, Fla.Stat.

(h)Religious institution. A business tax receipt is not required of any religious institution. A “religious institutions” for purposes of this sub-section means churches and ecclesiastical or denominational organizations or established physical places for worship in this state at which nonprofit religious services and activities are regularly conducted and carried on, and also includes church cemeteries. See§§205.022(1)(a); 205.191; 205.192, Fla.Stat.

(i)Educational institution. A business tax receipt is not

required of any educational institution. An “educational institution” means a state tax-supported or parochial, church and nonprofit private school, college, or university conducting regular classes and courses of study required for accreditation by or membership in the Southern Association of Colleges and Schools, the Department of Education, or the Florida Council of Independent Schools. Nonprofit libraries, art galleries, and museums open to the public are defined as educational institutions and eligible for exemption. See§§205.022(1)(b), Fla.Stat.

SECTION 3. Severability Clause/Interpretation.

(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) That in interpreting this Ordinance, underlined words

indicate additions to existing text, and stricken through words include deletions from existing text. Asterisks (* * * *) indicate a deletion from the Ordinance of text, which exists in the Code of Ordinances. It is intended that the text in the Code of Ordinances denoted by the asterisks and not set forth in this Ordinance shall remain unchanged from the language existing prior to adoption of this Ordinance.

SECTION 4. Effective Date. This Ordinance shall become effective upon adoption of this Ordinance.

PASSED by the Town Council of the Town of Indialantic on first reading on the 13th day of April, 2016, and ADOPTED by the Town Councilof the Town of Indialantic, Florida on finalreading on the ___ day of May, 2016.

TOWN OF INDIALANTIC

______

David Berkman

Mayor

ATTEST:______

Joan Clark

Town Clerk

Indialantic/BTR.OrdNo. 2016-113/29/16

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