Were hot soft-baked pretzels taxable across mall, kiosk, food-court, and outlet locations?

Subject

Sales of Hot Soft Baked Pretzels

Plain-English summary

Hot soft-baked pretzels were taxable in all eight described sales settings. The bakery-food exemption did not apply because the pretzels were hot prepared food—prepared heated and sold above the temperature of the surrounding room.

That result covered mall stores with and without seating, permanent kiosks, food-court and food-court-entrance locations, portable mini-kiosks or carts, and outlet-center stores with and without seating. Bakery licensing and off-premises consumption did not change the result.

What this means for you

The product's heated condition controlled across the location variations. Seating and lease-line facts did not restore the exemption for these hot pretzels.

Common questions

Q: Were pretzels from a no-seating mall store exempt? No.

Q: Were kiosk or cart sales exempt? No.

Q: Did bakery licensing change the result? No.

Citations and references

• Fla. Stat. § 212.06(1)(a) — tax on retail sales
• Fla. Stat. § 212.08(1) — food-products exemption and exclusions
• Fla. Stat. § 213.22 — Technical Assistance Advisements

Source

• Landing page: Florida Tax Law Library
• Advisement: TAA 00A-051

Original ruling text

SUMMARY

QUESTION: Are hot soft baked pretzels subject to sales
tax?

ANSWER - Based on Facts Below: The exemption granted for
bakery products in Section 212.08(1), F.S., does not apply
to hot prepared food products or to food products served
for consumption at tables, chairs, or counters, whether
provided by the dealer or by a person with whom the dealer
contracts to furnish, prepare, or serve the products to
others.

Oct 05, 2000

Re: Technical Assistance Advisement 00A-051
Sales of Hot Soft Baked Pretzels
Sections: 212.06, and 212.08(1), F.S
XXX (Taxpayer)
FEI Number XX

Dear :

This is in response to your letter dated July 18, 2000, for the
Department's issuance of a Technical Assistance Advisement (TAA)
concerning the above referenced party and matter. Your letter
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. This response to your request constitutes a TAA
and is issued to you under the authority of Section 213.22, F.S.

REQUESTED ADVISEMENT

Whether hot soft baked pretzels sold at eight different types of
locations, all of which are licensed and regulated as a bakery,
are subject to sales tax.

FACTS

The Taxpayer, through its franchisees, operates pretzel shops
which sell hot soft baked pretzels, soft drinks, prepackaged
dips and cheeses at various locations in Florida. All locations
are licensed and regulated under Chapter 500, F.S., as a bakery
by the Department of Agriculture and Consumer Services, as
opposed to being licensed and regulated under Chapter 509, F.S.,
as a restaurant by the Department of Business and Professional
Regulation. You have provided a synopsis of eight different
types of locations for which you seek guidance concerning the
taxability of the pretzels.

1.) In-Line store in an enclosed mall without seating. As an
in-line store, this unit has a storefront open to customers of
the mall. Sales are made from the counter and the customer
leaves the store area to consume their purchases elsewhere in
the mall (away from the seller's premises). This store has no
eating facilities within the confines of the seller's leased
premises.

2.) In-Line store in an enclosed mall with seating. This store
has tables and chairs within the confines of its leased space.
The customers may choose to consume their purchases within the
store, or elsewhere in the mall (away from the seller's
premises).

3.) Kiosk in an enclosed mall. This is a 200 square foot
permanent, four-sided structure, located in the entrance/hallway
of a mall. This structure is "stubbed" for its own utilities to
accommodate the oven and other electrical equipment. There is
no seating available within the lease line of the kiosk.

4.) In-line store in a food court in an enclosed mall. Same
facts as number one except that it is located within the
confines of a food court. Although there are tables and chairs
in the food court, there are no seating facilities within the
confines of the seller's leased premises.

5.) In-line store at entrance of food court in an enclosed mall.
Same facts as number one except that it is located at the
entrance of the food court. Easy access to the food court area

is available but there are no eating facilities within the
confines of the seller's leased premises.

6.) Mini-kiosk design (cart) or retail merchant unit in an
enclosed mall. These units have wheels, are portable, and are
located away from a full service "companion" store. The carts
are completely serviced by the companion store and are typically
located in an opposite wing of the mall.

7.) In-line locations in outlet centers with seating. Same
facts as number one except that this store is located in an
outlet mall. The store has glass doors that open to the sidewalk
for outside service. This location has eating facilities
available to their customers.

8.) In-line locations in an outlet center without seating. Same
facts as number seven except that there are no eating facilities
available on the seller's leased premises.

LAW

As provided in Section 212.06(1)(a), F.S., sales tax, at the
rate of 6 percent, shall be collectible from all dealers on the
sale at retail, the use, the consumption, the distribution, and
the storage for use or consumption in this state of tangible
personal property or services taxable under this chapter.
Pursuant to Section 212.08(1), F.S., there are exempted from tax
imposed by Chapter 212, F.S., food products for human
consumption. The exemption includes bakery products sold by
bakeries, pastry shops, or like establishments that do not have
eating facilities, and bakery products sold by such
establishments that do have eating facilities, but when such
products are sold for consumption off the seller's premises.
The exemption does not apply to bakery products sold as meals
(Section 212.08(1)(c)1., F.S.), as hot prepared food products
(Section 212.08(1)(c)6., F.S.), or to bakery products sold
through a vending machine, pushcart, motor vehicle, or any other
form of vehicle (Section 212.08(1)(c)10., F.S.) Also excluded
from the exemption are food products furnished, prepared, or
served for consumption at tables, chairs, or counters or from
trays, glasses, dishes, or other tableware, whether provided by

the dealer or by a person with whom the dealer contracts to
furnish, prepare, or serve food products to others. Section
212.08(1)(c)3., F.S.

The term "hot prepared food products" means those products,
items, or components which have been prepared for sale in a
heated condition and which are sold at any temperature that is
higher than the air temperature of the room or place where they
are sold.

DEPARTMENT RESPONSE

As provided in Sections 212.08(1)(c)6., and 212.08(1)(c)2.,
F.S., the exemption for food products does not apply when such
products are sold as hot prepared food products, or when served
for consumption at tables, chairs, or counters, whether provided
by the dealer or by a person with whom the dealer contracts to
furnish, prepare, or serve the products to others. This
exclusion from the exemption applies to bakery products and
therefore; the hot soft baked pretzels sold by the Taxpayer are
taxable under all of the scenarios explained above.

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 and
administrative rule changes or that 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., which are subject to disclosure to the public under the
conditions of s. 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.

Sincerely,

Richard R. Parsons
Tax Law Specialist
Technical Assistance and Dispute Resolution
(850) 922-4838
Control Number 41945