MISSISSIPPI LEGISLATURE
2019 Regular Session
To: Finance; Tourism
By: Senator(s) Chassaniol
AN ACT TO AUTHORIZE THE GOVERNING AUTHORITIES OF COUNTIES AND MUNICIPALITIES TO CREATE TOURISM AND VISITORS COMMISSIONS; TO PROVIDE FOR THE APPOINTMENT AND TERMS OF OFFICE OF MEMBERS OF SUCH COMMISSIONS; TO PROVIDE THE POWERS AND DUTIES OF SUCH COMMISSIONS; TO AUTHORIZE THE LEVY OF A SPECIAL TAX ON THE SALES OF PREPARED FOOD AND SALES OF HOTELS AND MOTELS TO PROVIDE FUNDS FOR THE PURPOSE OF CARRYING OUT PROGRAMS AND ACTIVITIES WHICH ARE DESIGNATED BY THE COMMISSION TO ATTRACT CONVENTIONS, VISITORS AND TOURISTS TO THE MUNICIPALITY OR COUNTY; TO PROVIDE THAT TOURISM AND VISITORS COMMISSIONS, CONVENTION BUREAUS AND ANY OTHER ENTITY ESTABLISHED TO PROMOTE TOURISM AND CONVENTIONS BY AUTHORITY OF LOCAL AND PRIVATE LEGISLATION SHALL CONTINUE TO OPERATE UNTIL THE LOCAL AND PRIVATE LEGISLATION IS REPEALED; TO PROVIDE THAT NO TOURISM AND VISITORS COMMISSION, CONVENTION BUREAU, OR OTHER ENTITY CREATED TO PROMOTE TOURISM AND CONVENTIONS SHALL BE ENACTED OR REENACTED BY LOCAL AND PRIVATE LEGISLATION; TO PROVIDE THAT ANY COMMISSION, BUREAU, OR OTHER ENTITY AUTHORIZED BY LOCAL AND PRIVATE LEGISLATION WHOSE AUTHORITY TO OPERATE AND LEVY TAXES HAS BEEN REPEALED MAY BE REORGANIZED AND LEVY TAXES ONLY AS PROVIDED BY THIS ACT; TO PROVIDE EXCEPTIONS TO CERTAIN PROVISIONS OF THE ACT TO ANY COMMISSION, BOARD, OR OTHER ENTITY ESTABLISHED BY LOCAL AND PRIVATE LEGISLATION OR BY GENERAL LAW THAT OPERATES A CONVENTION CENTER OR FACILITY, SPORTS FACILITY, OR AN INDUSTRIAL AREA, OR TO ANY COMMISSION, BOARD OR OTHER ENTITY RESPONSIBLE FOR PROMOTING TOURISM THAT HAS OUTSTANDING BONDED INDEBTEDNESS; TO AUTHORIZE MULTIPLE MUNICIPALITIES AND COUNTIES TO JOINTLY ADMINISTER A TOURISM AND VISITORS COMMISSION; TO PROVIDE FOR THE DISSOLUTION OF THE COMMISSIONS AUTHORIZED BY THIS ACT; TO AMEND SECTION 27-3-58, MISSISSIPPI CODE OF 1972, TO CREATE THE SPECIAL LEVIES UNIT IN THE DEPARTMENT OF REVENUE WHICH SHALL BE FUNDED BY THE REVENUE RETAINED UNDER SUCH SECTION AND PROVIDE FOR THE DUTIES OF SUCH UNIT; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. As used in this act:
(a) "Gross proceeds of sales" has the meaning ascribed to it in Section 27-65-3, Mississippi Code of 1972.
(b) "Prepared food" means:
(i) Food made to order upon the customer's request;
(ii) Food sold in a heated state or heated by the seller;
(iii) Two (2) or more food ingredients mixed or combined by the seller for sale as a single item, but not including food that is only cut, repackaged, or pasteurized by the seller, and eggs, fish, meat, poultry, and foods containing these raw animal foods requiring cooking by the consumer as recommended by the Food and Drug Administration in Chapter 3, part 401.11 of its Food Code so as to prevent food borne illnesses; or
(iv) Food sold with eating utensils provided by the seller, including plates, knives, forks, spoons, glasses, cups, napkins, or straws. Eating utensils provided at no charge to a customer with the purchase of a food item that remains in its original container packaged by the manufacturer is not considered prepared food. This includes items such as a cup of yogurt provided with a spoon.
(c) "Restaurant" means any place where prepared food and beverages are sold for consumption, whether the food and beverage is consumed on the premises or not. The term does not include any school, hospital, convalescent or nursing home, or any restaurant-like facility operated by or in connection with a school, hospital, medical clinic, convalescent or nursing home providing food for students, patients, visitors or their families.
(d) "Hotel" or "motel" means any entity or individual which is engaged in the business of furnishing one or more rooms, cottages or cabins designed for dwelling, lodging or sleeping purposes to transient persons and that are known to the trade as such. The term "hotel" or "motel" also include all buildings, including single-family dwellings or other structures kept, used, maintained or advertised as, or held out to the public to be, a place where sleeping accommodations are supplied for pay or other consideration regardless of the number of rooms, units, suites or cabins available. Advertising for rent to the general public, whether by the owner of the property or a third party, qualifies as being "known to the trade as such." It is immaterial that cooking facilities may or may not be furnished. The term "hotel" or "motel" also includes any entity or individual furnishing bed and breakfast accommodations to transient persons.
(e) "Governing authority" means the board of supervisors of the county, or the mayor and the council, board, commissioners or other legislative body charged by law with governing the municipality.
(f) "Commission" means a tourism and visitors commission established by authority of this act.
SECTION 2. (1) Any governing authority may establish a tourism and visitors commission in accordance with the terms set out in this act.
(2) (a) A governing authority may adopt a resolution setting out the need for the establishment of a tourism and visitors commission and its composition and duties. The commission shall be established from and after the effective date of the resolution.
(b) (i) Any commission so established shall have at least five (5) and no more than seven (7) members who shall be appointed by the mayor of the municipality, or the board of supervisors of the county. No more than three (3) members of the commission may be actively involved in the management or operation of a business which serves prepared food or operates a hotel or motel. All members of the commission shall be qualified electors of the governing authority which resolved to create the commission.
(ii) Commission members shall be appointed for a term of four (4) years, and shall hold office until such time as their successors are duly appointed and qualified. Members shall be eligible for reappointment.
(iii) All members shall post a bond of Ten Thousand Dollars ($10,000.00) prior to performing any official duties.
(3) (a) For the purpose of providing funds for the promotion of tourism, any commission established in accordance with the provisions of this act may request the governing authority to levy a Tourism and Visitors Tax, which shall be in addition to all other taxes imposed, not to exceed three percent (3%) of the gross proceeds of sales of the restaurant and three percent (3%) of the gross proceeds of room rentals for each hotel and motel in the municipality or county. No tax shall be levied until the governing authority has complied with the provisions of subsection (4) of this section.
(b) Persons liable for the tax imposed by this act shall add the amount of tax to the sales price or gross proceeds of sales, and in addition shall collect, insofar as practicable, the amount of the tax due from the person receiving the services or goods at the time of payment.
(c) Such tax shall be collected by and paid to the Department of Revenue, on a form prescribed by the Department of Revenue, in the same manner that state sales taxes are computed, collected and paid; and the full enforcement provisions and all other provisions of Chapter 65, Title 27, Mississippi Code of 1972, shall apply as necessary to the implementation and administration of this act.
(d) The proceeds of such tax, less three percent (3%) thereof which shall be retained by the Department of Revenue to defray the cost of collection, shall be paid to the city on or before the fifteenth day of the month following the month in which collected by the Department of Revenue. The municipality or county shall remit all funds paid under this paragraph to the commission established under this act not later than ten (10) days after receiving the funds from the Department of Revenue.
(e) The proceeds of the tax shall not be considered by governing authorities as general fund revenues and shall be dedicated solely for the purpose of carrying out programs and activities which are designated by the commission to attract conventions, visitors and tourists to the municipality or county. No funds derived from the tax levy authorized by this act shall be used for any county or municipal activities that are funded by general funds or other special levies of the governing authority.
(f) If a Tourism and Visitors Tax or similar tax is being levied in a municipality in a county prior to the imposition of a Tourism and Visitors Tax by a county, the tax levied by the county under this act shall only apply to areas in the county located outside the corporate limits of the municipality. If a Tourism and Visitors Tax or similar tax is being levied by a county that applies to all areas in the county prior to the imposition of a Tourism and Visitors Tax by a municipality, a municipality in the county shall not levy a tax under this act.
(g) Tax levies may only be imposed as provided in subsection (4) of this section.
(4) (a) A resolution adopted by a governing authority in accordance with subsection (2) of this section may also include the tax levy provided for in subsection (3) of this section.
(b) If the proposed tax rate of the tax levy is not in excess of the tax imposed by authority of legislation in effect prior to the effective date of this act, the governing authority shall include in its resolution a declaration of its intention to levy the taxes and establishing the amount of the tax levy and the date on which the taxes initially shall be levied and collected. The date shall be the first day of a month but not less than forty-five (45) days from the date of adoption of the resolution. Notice of the proposed tax levy shall be published once each week for at least three (3) consecutive weeks in a newspaper having a general circulation in the county or city, as appropriate. The first publication of the notice shall be made not less than twenty-one (21) days prior to the date fixed in the resolution on which the governing authorities propose to levy such taxes, and the last publication shall be made not more than seven (7) days prior to such date. If, within the time of giving notice, twenty percent (20%) or one thousand five hundred (1,500), whichever is less, of the qualified electors of the city file a written petition against the levy of such taxes, then such taxes shall not be levied unless authorized by a majority of the qualified electors of such governing authority voting at an election to be called and held for that purpose. Prior to the effective date of a tax levy approved as provided in this paragraph, the governing authorities shall furnish to the Department of Revenue a certified copy of the resolution evidencing such tax levy. The creation of a commission may be made contingent upon the adoption of the tax levied to support it.
(c) Before any tax that does not fall within the provisions of paragraph (b) of this subsection may be imposed, the governing authority shall adopt a resolution declaring their intention to levy the tax, setting forth the amount of the tax to be imposed and the date upon which the tax shall become effective, and calling for an election to be held on the question. The date of the election shall be fixed in the resolution. Notice of the intention and the election shall be published once each week for at least three (3) consecutive weeks in a newspaper published or having a general circulation in the city or county, with the first publication of the notice to be made not less than twenty-one (21) days before the date fixed in the resolution for the election and the last publication to be made not more than seven (7) days before the election. At the election required to be held by this paragraph, all qualified electors of the city or county, as appropriate, may vote, and the ballots used in the election shall have printed thereon a brief statement of the amount and purposes of the proposed tax levy and the words "FOR THE TAX" and, on a separate line, "AGAINST THE TAX," and the voters shall vote by placing a cross (X) or check (ü) opposite their choice on the proposition. When the results of the election have been canvassed and certified, the city may levy the tax if sixty percent (60%) of the qualified electors who vote in the election vote in favor of the tax. At least thirty (30) days before the effective date of the tax, the governing authorities shall furnish to the Department of Revenue a certified copy of the resolution evidencing the tax. The resolution creating a commission may be made contingent upon the adoption of any new tax levied to support it.
(5) Any commission established by authority of this act shall:
(a) Have jurisdiction and authority over all matters relating to the establishment, promotion and development of tourism and related matters within the governing authority or authorities that created it;
(b) Have the authority to contract for the furnishing, equipping and operation of any facilities necessary or useful in the promotion of tourism;
(c) Establish a budget reflecting the anticipated receipts and expenditures for such purposes as promotion, advertising and operation, which shall be adopted by the commission and submitted to the governing authority for approval;
(d) Receive and expend, subject to the provisions of this act, revenues from any source, including tax levies specifically provided for by this act;
(e) Hire staff necessary to carry out the purposes of a tourism and visitors commission;
(f) Account for receipts and expenditures of the all funds received;
(g) Have the authority to own, lease or contract for any equipment useful and necessary in the promotion of tourism and convention business;
(h) Have the authority to sell, convey and otherwise dispose of all or any part of its property and assets in accordance with the laws of the State of Mississippi;
(i) Have and exercise all powers necessary or convenient to effect any and all of the purposes for which the commission is organized; and
(j) Establish an advisory council comprised of five (5) persons knowledgeable in the restaurant or hospitality industry, who shall serve at the will and pleasure of the commission.
(6) As a condition of the receipt of any funds provided by the commission for the support of any event, the person or organization receiving the funds shall provide the commission with a written accounting of all expenditures of the funds. The expenditures may be audited by the commission should it determine that an audit is necessary to ensure that funds were expended solely for the purposes set out in the grant agreement. The accounting shall be made available to the public under the provisions of the Mississippi Public Records Act of 1983.
(7) No motor vehicle owned or leased by a commission shall be operated by any member or employee of a commission except in the performance of his or her official duties directly related to the business of the commission. Any violation of this prohibition may be punished by removal from office or employment.
(8) Funds received from levies authorized by this act shall be accounted for separately from any other funds received and expended by the commission. The records reflecting all receipts and expenditures of the funds shall be audited annually by an independent certified public accountant, and such accountant shall make a written report of such audit to the clerk of the municipality or the Chancery Clerk of the county which authorized the creation of the commission. The audit shall be made and completed as soon as practicable after the close of the fiscal year, and the expenses of the audit may be paid from the funds of the commission of this act. The State Auditor shall have the authority to conduct audits or investigations of any commission created by the authority of this act.
(9) All commission members and employees of such commissions shall be considered public servants for purposes of Section 25-4-101 et seq. The commission shall be a public body for purposes of Section 25-41-1 et seq., otherwise known as the Open Meetings Law, and Section 25-61-1 et seq., otherwise known as the Public Records Act of 1983.
SECTION 3. (1) Tourism and visitors commissions, convention bureaus and any other entity established to promote tourism and conventions by authority of local and private legislation shall continue to operate that commission by authority of the local and private legislation until the local and private legislation is repealed. From and after the effective date of this act, no tourism and visitors commission, convention bureau or other entity created to promote tourism and conventions shall be enacted or reenacted by local and private legislation. Any such commission, bureau or other entity whose authority to operate and levy taxes has been repealed may be reorganized and levy taxes only as provided by this act.
(2) This section shall not apply to any commission, board, or other entity established by local and private legislation or by general law that operates a convention center or facility, sports facility, or an industrial area, or to any commission, board or other entity responsible for promoting tourism that has outstanding bonded indebtedness.
SECTION 4. Any municipality or municipalities, or county or counties, or any combination thereof, may by resolution adopted by each governing authority, provide for the establishment of a tourism and visitors commission for all governing authorities that adopt such resolution. The commission established pursuant to such resolutions shall be governed by all provisions of this act except that the governing authorities may choose to create a governing board of no more than nine (9) commission members. The provisions of this act governing the appointment, and responsibilities of such commission shall be applicable to any commission established by authority of this section. Taxes may be levied by multiple governing authorities for the support of the commission, but the provisions regarding the levying and imposition of such taxes in Section 2(4) of this act shall apply. The allocation of members to be appointed to the commission shall be based on an allocation mutually acceptable to the governing authorities participating in the creation of the commission.
SECTION 5. Any governing authority may at any time choose to dissolve a tourism and visitors commission by resolution. Any levy authorized by this act shall cease to be imposed from and after the dissolution of a tourism and visitors commission. It shall be the responsibility of the governing authority or authorities to inform the Department of Revenue of any action that results in any change in the imposition of any tax authorized by this act. Any unencumbered balances in the accounts of a dissolved commission shall be transferred to the credit of the general fund of the appropriate municipality or county.
SECTION 6. Section 27-3-58, Mississippi Code of 1972, is amended as follows:
27-3-58. (1) For any tax levied and collected under the authority of a local and private law of the State of Mississippi or under the authority of Sections 1 through 5 of Senate Bill No 2883, 2019 Regular Session, and collected and paid to the Department of Revenue in the same or similar manner that state sales taxes are collected and paid, the Department of Revenue may retain three percent (3%) of the proceeds of such tax for the purpose of defraying the costs incurred by the Department of Revenue in the collection of the tax.
(2) There is created the Special Levies Unit in the Department of Revenue which shall be funded by the revenue retained under subsection (1) of this section. The Special Levies Unit shall be responsible for:
(a) Working with local tourism and visitors commissions and governing authorities to maximize the collection of any special levies authorized by this act;
(b) Identifying any problems with the collection of special levies that could be remedied by the passage of legislation;
(c) Maintaining records of all collections remitted to governing authorities by authority of this act, and providing the records to the local tourism and visitors commissions on a monthly basis;
(d) Taking all reasonable legal action against persons required to remit taxes levied by authority of this act who have failed to make any remittance; and
(e) Taking any actions necessary and proper to carry out the requirements of this section.
(3) All administrative provisions of the Mississippi Sales Tax Law, including those which fix damages, penalties and interest for nonpayment of taxes and for noncompliance with the provisions of the Mississippi Sales Tax Law, and all other requirements and duties imposed upon taxpayers, shall apply to all persons liable for taxes levied under the provisions of Sections 1 through 5 of this act or any local and private legislation providing for similar tax levies, and the Department of Revenue shall exercise all the power and authority and perform all the duties with respect to taxpayers regarding such levies as are provided in the Mississippi Sales Tax Law.
SECTION 7. This act shall take effect and be in force from and after July 1, 2019.