Did a free weekly publication containing television listings and about 38% advertising qualify for Florida's shopper or community-newspaper exemption?

Subject

Free Publications for Advertising

Plain-English summary

The free weekly television-listings publication did not qualify for Florida's shopper or community-newspaper sales-tax exemption. It was distributed through racks and advertised a broad range of unrelated businesses, but the submitted issue devoted only about 38% of its copy to advertising.

It failed the community-newspaper category because it did not routinely report current events or general-interest matters for a broad public audience. It failed the shopper category because the publisher represented that more than 50% advertising in more than half of the issues during a 12-month period was not feasible.

What this means for you

Free distribution and some advertising were not enough. The Department separately tested the publication's news content and whether advertising was genuinely its primary purpose over time.

Common questions

Q: Did free rack distribution qualify the publication? No.

Q: Why was it not a community newspaper? It lacked the required recurring current-events and general-interest reporting.

Q: Why was it not a shopper? Advertising was not the primary content under the ruling's percentage test.

Citations and references

• Fla. Stat. § 212.08(7)(w) — free shoppers and community newspapers
• Fla. Admin. Code r. 12A-1.008 — publication classifications
• Department of Revenue v. Magazine Publishers of America, 604 So. 2d 459 (Fla. 1992)
• Campus Communications, Inc. v. Department of Revenue, 473 So. 2d 1290 (Fla. 1985)
• Fla. Stat. § 213.22 — Technical Assistance Advisements

Source

• Landing page: Florida Tax Law Library
• Advisement: TAA 93A-056

Original ruling text

Title:

Free Publications for Advertising

Aug 13, 1993

Re: Technical Assistance Advisement 93(A)-056
Sales Tax; Free Circulated Publication Comprised of
Television Listings and Advertising
Section 212.08(7)(w), F.S.
XXX (Herein the "Publisher")
FEI No.: XXX
XXX (Herein the "Publication")

Dear :

This response is in reply to your July 9, 1993, petition for the
Department's issuance of a Technical Assistance Advisement
("TAA") pursuant to s. 213.22, F.S., concerning the captioned
matter and party. Your petition has been carefully examined and
the Department finds it to be in compliance with the requisite
criteria set forth in Chapter 12-11, F.A.C. Therefore, the
Department is herewith granting your request for the issuance of
a TAA and the ensuing discourse shall embody said ruling.

DISCUSSION OF FACTS

The salient facts pertaining to the matter under advisement as
derived from your petition, supporting documents, and our
telephone conversation of July 28, 1993, are substantially as
follows:

Publisher is a graphics company which does the graphics for
the Publication and other similar publications in Florida.
The Publisher has been in business since 1980 and you
advise has always charged sales tax on the total balance of
the graphics and the printing and remitted said tax to the
Department. The Publication is published weekly by the
Publisher and is distributed free of charge through racks
located in supermarkets, restaurants, banks, drug stores,
etc. The Publication's contents consists of television

listings together with advertising of a broad range of
products and services offered by several unrelated types of
businesses or individuals.

By the Department's analysis, the sample of the Publication
submitted with your letter has approximately 38% of its
copy devoted to advertising. Further, in our July 28,
1993, telephone conversation you stipulated that it would
be a rarity for the Publication to have more than 50% of
its copy devoted to advertising. You further advised that
to bring the advertising percentage above 50% would require
either: (i) adding additional pages of advertising to the
Publication, which you indicate would be cost prohibitive;
or (ii) reducing the television listings to provide more
room for advertising, which you indicate would result in
decreased circulation and a corresponding decrease in
advertising customers. Consequently, you stipulate that it
is not feasible that the Publication will have in excess of
50% advertising in more than one-half of its publications
during a twelve month period.

DISCUSSION OF LAW AND POLICY

STATUTORY LAW

The exemption under consideration is set forth in s.
212.08(7)(w), F.S., which provides:

"(w) Newspapers, shoppers, and community newspapers.Likewise exempt are newspapers. Also exempt are free,
circulated publications which are published on a regular
basis, the content of which is primarily advertising, and
which are distributed through the mail, home delivery, or
newsstands."

To ascertain the sales tax treatment of the above publications,
it is first necessary to determine the breadth intended by the
legislature of the term "publication" as used in s.
212.08(7)(w), F.S. To this end, the Department must be directed
by the pertinent case law introduced in the ensuing discussions.

CASE LAW

First, as s. 212.08(7)(w), F.S., constitutes a statutory
exemption, the Department in construing said provision must
adhere to and be guided by the long-standing and fundamental
precept of statutory construction, established by the Florida
Supreme Court, which mandates that exemptions from or exceptions
to taxing statutes must be strictly construed against the
taxpayer. See Asphalt Pavers v. Dept. of Revenue, 584 So.2d 57
(Fla. 1st DCA 1991); Dade Cty. Taxing Auth. v. Cedars of
Lebanon, 355 So.2d 1205 (Fla. 1978), reh. den. April 5, 1978;
Williams v. Jones, 326 So.2d 425 (Fla. 1975), reh. den. March 4,
1976; Straughn v. Camp, 293 So.2d 689 (Fla. 1974); United States
Gypsum Company v. Green, 110 So.2d 409 (Fla. 1959).

Additionally, when a statute is ambiguous, the title may be
examined in order to determine the legislative intent. 49 Fla.
Jur. 2d Statutes section 156. The title of s. 212.08(7)(w),
F.S., refers to "newspapers, shoppers, and community
newspapers." Therefore, in construing s. 212.08(7)(w), F.S., the
Department must refer to the title in interpreting an ambiguous
statute, which effectively bars the body of the statute from
being construed more broadly than its title. Further support is
lent to this interpretation by construing the title and the body
of the statute under the rule of ejusdem generis, since the
title of section 212.08(7)(w), F.S., refers to "newspapers,
shoppers, and community newspapers." 49 Fla. Jur. 2d Statutes
section 128.

Further, the Florida Supreme Court overturned the newspaper
exemption provided in Section 212.08(7)(w), F.S., in 1992. See
Department of Revenue v. Magazine Publishers of America, 604
So.2d 459 (Fla. 1992). However, the part of the exemption
regarding free circulated publications remained intact.
Further, in a predecessor decision, Campus Communications v.
Dept. of Rev., 473 So.2d 1290 (Fla. 1985), the Florida Supreme
Court had already held that a free-distribution publication
which had its origin as a student newspaper was a "newspaper"
within the meaning of the statutory exemption from sales tax for
newspapers considering that the publication included a broad
range of news stories including staff-written and wire service

material with a relatively low percentage of space devoted to
advertisements.

In creating the exemption for shoppers and community newspapers,
effective July 1, 1991, by the amendments to s. 212.08(7)(w),
F.S., enacted by s. 93, Ch. 90-132, L.O.F., the Legislature
acted with full knowledge of the Florida Supreme Court's
decision in Campus Communications. Additionally, it is pointed
out that a statute may contain constitutional and
unconstitutional provisions even within the same section. See
State ex rel. Landis v. Green, 144 So. 681 (Fla. 1932). When
part of a statute is declared unconstitutional but the remaining
provisions can be given effect independent of the void
provision, such other provisions are not affected by the
determination of unconstitutionality. See 10 Fla. Jur. 2d 312,
Constitutional Law s. 98.

Therefore, considering that the shopper and community newspaper
exemption was enacted with the Legislature's full knowledge of
Campus Communications, supra, together with the fact that
constitutional provisions may exist in good effect within the
same section of statute with unconstitutional provisions, we
must, thus, conclude that the invalidation of the newspaper
exemption by the Florida Supreme Court in Magazine Publishers,
supra, does not encompass and nullify the exemption under s.
212.08(7)(w), F.S., for free community newspapers provided the
criteria set forth in the exemption are met.

As an aside, it is acknowledged that although free campus
newspapers of the sort examined in Campus Communications, supra,
would not be exempt under s. 212.08(7)(w), F.S., due to their
not consisting primarily of advertising, such publications might
well qualify for the exemption provided under s.
212.08(7)(o)2.d., F.S.

Therefore, focusing back on the exemption for certain free
publications granted by s. 212.08(7)(w), F.S., the Florida
Supreme Court's doctrine of strict construction of exemptions
would operate to confine said exemption to a publication which
can demonstrate under a strict construction that it naturally,
logically, and by clear connection falls into the category of a

"shopper" or "community newspaper". The statute does not define
the terms "shopper" or "community newspaper"; thus, the
legislative intent of the scope of these terms must be
ascertained by enlisting the following fundamentals of statutory
construction while at the same time keeping in mind the Florida
Supreme Court doctrine of strict construction of exemptions
earlier noted.

It is a fundamental principle of statutory construction that
legislative intent and policy concerns must control our
construction of statutes and that the determination as to the
intent of the legislature is based upon the plain and ordinary
meaning of the language in the statute itself. See Holly v.
Auld, 450 So.2d 217 (Fla.1984).

In the matter of St. Petersburg Bank & Trust Co. v. Hamm, 414
So.2d 1071 (Fla.1982), the Florida Supreme Court held that while
legislative intent controls construction of statutes, that
intent is determined primarily from language of the statute;
plain meaning of statutory language is first consideration.

In the matter of S.R.G. Corp. v. Department of Revenue, 365
So.2d 687 (Fla.1978), the Florida Supreme Court held that
legislative intent must be determined primarily from language of
statute, as the legislature must be assumed to know the meaning
of the words and to have expressed its intent by the use of the
words found in the statute.

POLICY

With the aim of conforming to the above fundamentals of
statutory construction established by the Florida Supreme Court
as well as the Florida Supreme Court doctrine on strict
construction of statutory exemptions, the Department takes the
position that the plain and ordinary meaning of the term
"shopper" as used in s. 212.08(7)(w), F.S., when narrowly
construed refers to a community publication made available to
its coverage area by way of distribution through the mail, home
delivery, or newsstands free of charge, which is published on a
regular basis and which advertises a broad range of products and
services offered by several unrelated types of businesses or

individuals, and which has a conformity as to title and general
nature of content from issue to issue, and may contain in each
issue at least some news of general or community interest,
community notices, and could also contain editorial comment or
articles by different authors.

In the case of "shoppers", it is the Department's position with
respect to satisfying the "primarily advertising" requirement
specified in s. 212.08(7)(w), F.S., that if more than 50 percent
of the publication's copy was devoted to advertising in more
than one-half of the published editions during any 12-month
period, said publication's primary purpose will be presumed to
have been advertising.

As for the term "community newspaper," the Department takes the
position that the plain and ordinary meaning of the term
"community newspaper" as used in s. 212.08(7)(w), F.S., when
narrowly construed refers to a community publication possessing
the following attributes: (i) its circulation must be free; (ii)
it must be published at stated short intervals (usually daily or
weekly); (iii) it must not, when successive issues are put
together, constitute a book; (iv) it must be intended for
circulation among the general public; (v) it must consist
primarily of advertising of a broad range of products and
services offered by several unrelated types of businesses or
individuals; (vi) it must routinely contain reports of current
events and matters of general interest which appeal to a wide
spectrum of the general public; and (vii) it must be distributed
through the mail, home delivery, or newsstands.

In the case of "community newspapers", it is the Department's
position with respect to satisfying the "primarily advertising"
requirement specified in s. 212.08(7)(w), F.S., that if more
than 75 percent of the publication's copy was devoted to
advertising in more than one-half of the published editions
during any 12-month period, said publication's primary purpose
will be presumed to have been advertising and not the
dissemination of news (see Rule 12A-1.008, F.A.C., enclosed).
Conversely, under the same rule, if 25 percent or more of a
publication's copy was devoted to reporting on current events
and matters of general interest which appeal to a wide spectrum

of the general public, in more than one-half of the published
editions during any 12-month period, such publication's
principal purpose will be presumed to be dissemination of news
and not that of primarily advertising.

CONCLUSIONS OF LAW

Applying the foregoing statutory law, rule, case law, and policy
in evaluating the Publication forces the conclusion that the
Publication does not legitimately fit the pattern of a community
newspaper, as it lacks the required content of routinely
containing reports of current events and matters of general
interest which appeal to a wide spectrum of the general public.
Therefore, we hereby affirm that the Publication fails to
qualify for the exemption provided in s. 212.08(7)(w), F.S., as
a "community newspaper".

As to the matter of eligibility for the exemption as a
"shopper", we are able to clearly determine from examination of
the Publication satisfaction of all the above discussed
requirements of a shopper except that of consisting of primarily
advertising in more than one-half of the published editions
during any 12-month period. Recalling from the forgoing
discussion of facts that the sample of the Publication submitted
had only approximately 38% of its copy devoted to advertising
and your stipulation that it would not be feasible for the
Publication to devote in excess of 50% of its copy to
advertising in more than one-half of the publications in a
12-month period forces the conclusion that the Publication fails
to satisfy the statutory requirement of consisting primarily of
advertising requisite to qualifying for the sales and use tax
exemption under s. 212.08(7)(w), F.S., as a shopper. Therefore,
the Department hereby enters its finding that the Publication
does not qualify for the sales and use tax exemption provided in
s. 212.08(7)(w), F.S., as a shopper.

This response constitutes a Technical Assistance Advisement
under s. 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 s. 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 and your request are
public records under Chapter 119, F.S., which are subject to
disclosure to the public under the conditions of s. 213.22, F.S.
Your name, address, and any other details which might lead to
identification of the taxpayer must be deleted by the Department
before disclosure. In an effort to protect confidential
information, we request you notify the undersigned in writing
within 15 days of any deletions you wish made to the request or
this response.

Sincerely,

Daniel M. Wagner, Jr.
Tax Law Specialist

DW/
Control No. 10178