Text of AL HB 17 (2015)

1 HB17 2 171544-1 3 By Representatives Williams (JD), Williams (JW), Fridy, Faust, 4 Shiver, Nordgren, Johnson (K), Martin, Baker, Patterson, 5 Faulkner, Wingo, Whorton (R), Scott and Butler 6 RFD: Ways and Means General Fund 7 First Read: 08-SEP-15 Page 0 1 171544-1:n:08/26/2015:LFO-KF/bdl 2 3 4 5 6 7 8 SYNOPSIS: To levy an excise tax on the receipts from 9 the sale of sexually-oriented materials and certain 10 charges related to sexually-explicit businesses. 11 12 A BILL 13 TO BE ENTITLED 14 AN ACT 15 16 To levy an excise tax on the receipts from the sale 17 of sexually-oriented materials and certain charges related to 18 sexually-explicit businesses. 19 BE IT ENACTED BY THE LEGISLATURE OF ALABAMA: 20 Section 1. (a) The Legislature finds that: 21 (1) Under current Alabama law, it is unlawful for a 22 minor to purchase, use, or possess alcoholic beverages or 23 tobacco products. 24 (2) Also under current law, it is illegal for any 25 person to distribute certain sexually-oriented materials and 26 services to a minor or to allow a minor to enter into certain Page 1 1 sexually-explicit businesses because such content is deemed 2 harmful to minors. 3 (3) Alcoholic beverages and tobacco products are 4 further regulated by the state through the levy of specific 5 excise taxes in addition to sales and use taxes; however, the 6 state does not levy an excise tax on the receipts from the 7 sale of sexually-oriented materials and services or certain 8 charges related to sexually-explicit businesses. 9 (b) The purpose of this act is to levy an excise tax 10 on the sale of sexually-oriented materials and certain charges 11 related to sexually-explicit businesses such that all products 12 and services whose acquisition or use by minors is prohibited 13 by the state in the same manner. 14 Section 2. As used in this act, the following terms 15 shall have the following meanings 16 (1) DEALER. A manufacturer, distributor, wholesaler, 17 or retailer engaged in the sale of sexually-oriented 18 materials. 19 (2) DEPARTMENT. The Department of Revenue. 20 (3) MINOR. Any person under the age of 18 years. 21 (4) NUDE OR PARTIALLY DENUDED INDIVIDUAL. An 22 individual with any of the following less than completely and 23 opaquely covered: 24 a. Genitals; 25 b. The pubic region; or 26 c. A female breast below a point immediately above 27 the top of the areola. Page 2 1 (5) PERSON. Any individual and, except where 2 inappropriate, any partnership, firm, association, corporation 3 or other legal entity. 4 (6) SEXUAL CONDUCT. The term means: 5 a. Any act of sexual intercourse, masturbation, 6 urination, defecation, lewd exhibition of the genitals, 7 sado-masochistic abuse, bestiality, or the fondling of the sex 8 organs of animals; or 9 b. Any other physical contact with a person’s 10 unclothed genitals, pubic area, buttocks, or the breast or 11 breasts of a female, whether alone or between members of the 12 same or opposite sex or between a human and an animal, in an 13 act of sexual stimulation, gratification, or perversion. 14 (6) SEXUALLY-ORIENTED MATERIAL. Any book, magazine, 15 newspaper, printed or written matter, writing, description, 16 picture, drawing, animation, photograph, motion picture, film, 17 video tape, pictorial presentation, depiction, image, 18 electrical or electronic reproduction, broadcast, 19 transmission, video download, telephone communication, sound 20 recording, article, device, equipment, matter, oral 21 communication, depicting breast or genital nudity or sexual 22 conduct as defined herein. 23 (7) SEXUALLY-EXPLICIT BUSINESSES. A business at 24 which any nude or partially denuded individual, regardless of 25 whether the nude or partially denuded individual is an 26 employee of the sexually-explicit business or an independent 27 contractor, performs any of the following services: Page 3 1 a. Striptease, burlesque, or drag shows; or 2 b. Massages. 3 (8) TAXPAYER. Any person liable for the tax or taxes 4 under this act. 5 Section 3. (a) In addition to any other applicable 6 taxes, a 40 percent state excise tax on the gross receipts 7 resulting from: 8 (i) The sale or rental of sexually-oriented 9 material, the sale or rental of which is prohibited to a minor 10 as defined herein; and 11 (ii) Charges for admission to a sexually-explicit 12 business as defined in Section 2(7)a. and services received at 13 a sexually-explicit business as defined in Section 2(7)b. 14 (b) The tax levied by this section shall not apply 15 to motion pictures designated by the rating board for the 16 Motion Picture Association of America by the letter “R” for 17 restricted audiences, persons under 17 years of age not 18 admitted unless accompanied by parent or adult guardian, or 19 the designation “NC-17” for persons under 17 years of age not 20 admitted. In addition, this subsection shall not apply to: (1) 21 any contraceptive device or medication or (2) any medication 22 that is prescribed by a physician that is intended to enhance 23 sexual performance or sexual enjoyment. 24 (c) The tax levied by this section on 25 sexually-oriented materials shall be paid by the dealer when 26 the product is sold. The tax levied by this section on charges 27 at sexually-explicit businesses shall be collected by the Page 4 1 owner at the time services are provided. A person subject to 2 the tax imposed by this section shall file monthly returns and 3 remit the tax for the month to the department on or before the 4 twentieth (20th) day of the next month following the month in 5 which the sale was made. The return shall be made upon forms 6 prescribed and furnished by the department. 7 (d) All taxes collected by the department under 8 subdivision (a) for the benefit of the state shall be 9 deposited into the State General Fund. 10 (e) In addition to the tax levied pursuant to 11 subdivision (a) of this section, there is hereby levied an 12 additional excise tax of 10 percent of (i) the gross receipts 13 resulting from the sale or rental of sexually-oriented 14 material as defined herein; and (ii) charges for admission to 15 a sexually-explicit business as defined in Section 2(7)a. and 16 services received at a sexually-explicit business as defined 17 in Section 2(7)b. The tax shall be collected in the same 18 manner as the state excise tax. From the proceeds of this tax, 19 the state shall pay one-half of the total proceeds to the 20 county and one-half of the proceeds to the municipality in 21 which the sale occurred or the sexually-explicit business is 22 located. If the sale occurs or sexually-explicit business is 23 located in an unincorporated area the municipality's share 24 shall be split equally between the state and the county. 25 (f) The dealer and/or owner may retain 1 percent of 26 the total sales collected to cover the costs associated with 27 the collection and payment of the taxes to the department. No Page 5 1 administrative costs shall be allowed, nor any monies retained 2 by the dealer and/or owner from any taxes that are not paid 3 before becoming delinquent. 4 Section 4. The Department of Revenue shall 5 promulgate rules and forms necessary to implement the 6 provisions of this act. 7 Section 5. The provisions of this act are severable. 8 If any part of this act is declared invalid or 9 unconstitutional, that declaration shall not affect the part 10 which remains. 11 Section 6. This act shall become effective on the 12 first day of the third month following its passage and 13 approval by the Governor or its otherwise becoming law. Page 6