Were exhibitor licenses for retail concessionaires selling goods at an event on airport premises exempt from Florida real-property rental tax?

Plain-English summary

The event operator retained control over access and use of its property and allowed exhibitors only a limited privilege to occupy space and sell approved products. Because exhibitors did not receive exclusive possession against the owner, the agreement was a license rather than a lease.

The exhibitors sold food, drink, and other tangible personal property directly to the public and therefore qualified as retail concessionaires. The event property was within the premises of a publicly owned airport.

Payments under those retail-concessionaire licenses were exempt from real-property rental tax. Licenses granted to exhibitors that did not provide qualifying retail concession services remained taxable.

What this means for you

The exemption requires all three elements: a true license, qualifying retail concession sales, and an airport-premises location.

Common questions

Why was the agreement a license? The operator retained control and did not grant exclusive possession.

Which exhibitors qualified? Those selling food, drink, or other tangible personal property as retail concessionaires.

Were non-retail exhibitor licenses exempt? No.

Citations and references

• Fla. Stat. § 212.031 and Fla. Admin. Code r. 12A-1.070, as cited in the advisement.

Source

• Landing page: Florida Tax Law Library
• Advisement: TAA 11A-022

Original ruling text

SUMMARY
QUESTION: Does the Taxpayer’s Exhibitor License constitute an exempt license with persons
providing retail concession services involving the sale of food and drink or other tangible personal
property within the premises of an airport as provided in section 212.031(1)(a)10., F.S.
ANSWER: Yes. Review of the Exhibitor License verifies that the Taxpayer’s agreement with
exhibitors, for the use of Taxpayer’s property, constitutes a license. The information provided also
indicates that the Exhibitors are considered “retail concessionaires,” as defined in Rule 12Al.070(1)(b)3., F.A.C. Also, the information provided in the Taxpayer’s letter and accompanying
aerial photograph of last year’s Annual Event, verifies that the Taxpayer’s property is within the
premises of an airport.
The Taxpayer’s Exhibitor License constitutes an exempt license with persons providing retail
concession services involving the sale of food and drink or other tangible personal property within
the premises of an airport as provided in section 212.031(1)(a)10., F.S.
July 22, 2011
XXX
Re:

Subject: Technical Assistance Advisement (TAA) 11A-022
Sales and Use Tax – Exhibitor Licenses
Section 212.031, Florida Statutes (F.S.)
Rule 12A-1.070, Florida Administrative Code (F.A.C.)
XXX (“Taxpayer”)
FEI # XXX

Dear XXX:
This is in response to your letter dated June 6, 2011, requesting this Department’s issuance of a
Technical Assistance Advisement (“TAA”) pursuant to section 213.22, F.S., and Rule Chapter 1211, F.A.C., concerning whether the Taxpayer’s agreement with exhibitors, for the use of
Taxpayer’s property, constitutes an exempt license pursuant to section 212.031(1)(a)10., F.S. An
examination of your letter has established you have complied with the statutory and regulatory
requirements for issuance of a TAA. Therefore, the Department is hereby granting your request
for a TAA.
Facts
Your letter provides the following in part:
. . . [Taxpayer] is a Florida corporation not for profit and is recognized by the Internal
Revenue Service as a tax-exempt organization pursuant to Section 501(c)(3) of the Internal

Technical Assistance Advisement
Page 2 of 6
Revenue Code.
[Taxpayer] operates from approximately 160 acres of land situated within the premises of
. . . [an] Airport. . . . [The] Airport is owned by [a city in Florida]. The acreage which
[Taxpayer] leases from the City . . ., by its ownership and use, consists of a publicly owned
recreational facility as the same is described in Section 212.031(1)(a)10., Florida Statutes,
and, in fact, contains and includes areas and buildings which function as convention halls,
exhibition halls, auditoriums, stadiums, theaters, arenas, and performing arts centers.
Among its many other uses of the property, [Taxpayer] conducts an [Annual Event] . . . .
The [Annual Event] is an international convention which takes place during a six-day
period and which is attended by tens of thousands of people from the United States and in
excess of 80 foreign countries. . . . The various buildings and grounds accommodate the
convention and its attendees by their use as convention halls, exhibition halls, auditoriums,
stadiums, theatres, arenas, and performing arts centers. It is a publicly owned recreational
facility.

. . . During each [Annual Event], well in excess of 500 retail concessionaires provide retail
concessionaire services involving the sale of food and drink and the sale of other tangible
personal property within the premises of the airport . . . . Each of these retail
concessionaires receives from [Taxpayer] a written license to use [Taxpayer’s] property.
Each License will be signed by a representative of [Taxpayer] and a representative of the
retail concessionaire . . . . Each retail concessionaire is obligated to comport himself,
herself, or itself in accordance with the License.
Along with your request for a TAA, you included a copy of the . . . [Annual Event] . . .
Application / License for Exhibit Space” (Exhibitor License), as well as an aerial photograph of
last year’s Annual Event. The Exhibitor License provides the following in part:
. . . Exhibit Space Assignments
Exhibitor is applying to [Taxpayer] for a License for an Exhibit Space in a building or on a
parcel of land (“Exhibit Space”) for [Annual Event]. Exhibitor understands that this
document shall not become a License, and therefore, Exhibitor does not have a License and
does not have an Exhibit Space secured, until Exhibitor receives a copy of this Application
/ License with an official [Taxpayer] Authorized Signature affixed . . . . Should [Taxpayer]
grant Exhibitor a License, Exhibitor shall have the privilege to use or occupy an Exhibit
Space in a building or on a parcel of land in accordance with the terms and conditions of
this License.
Do not assume Exhibitor has any Exhibit Space. The use of any Exhibit Space does not
create any presumption or expectation of Exhibitor being authorized to use that or any
other Exhibit Space at any subsequent [Annual Event].

Technical Assistance Advisement
Page 3 of 6

Exhibitor is hereby offered the following Exhibit Space(s) for the 2012 [Annual Event], or
space(s) in the designated are(s) with exact location to be determined.

. . . Exhibit Space must be claimed by 8 A.M. on March 27, 2012, or Exhibit Space may
be reassigned at the sole and exclusive discretion of [Taxpayer].
Exhibitor, by the signing of this Application / License by the undersigned Exhibitor
Representative, acknowledges and agrees that the Exhibitor, its agents, representatives,
servants, employees, customers, providers, suppliers, and/or guests shall abide by and be
bound by the [Taxpayer] Rules and Regulations set forth on Page Two of this Application /
License . . . .
[Annual Event] Rules and Regulations
Failure to abide by the following [Annual Event] Rules and Regulations, which are an
integral part of this License, may result in the termination of this License and the removal
of any exhibit from the [Annual Event] site and may result in denial of future Exhibit
Spaces.

Reserving Exhibit Space: [Taxpayer] reserves the right to relocate Exhibitor to another
Exhibit Space at any time and from time to time, either before or during the [Annual
Event]. Full payment, received by September 15, 2011, will guarantee an Exhibit Space as
selected in the sole and exclusive discretion of [Taxpayer]. Exhibitor understands and
agrees that Exhibitor has no right to use or occupy any specific, fixed, or particular Exhibit
Space and has not been granted an exclusive use or occupancy of any such Exhibit Space.
...

Nature of Exhibits: Only those products documented on this License as approved by
[Taxpayer] shall be allowed to be sold or shown at Exhibitor’s Exhibit Space. . . .
Sublicensing of Exhibit Space – Assignment of License is Prohibited: Exhibitors shall not
sublicense any Exhibit Space in whole or part, nor display any goods other than those
approved by [Taxpayer] . . . . Exhibitors shall not assign this License. . . .

[Taxpayer] reserves the right in its sole and exclusive discretion to bar any exhibit, person,
or entity that is not in keeping with the character or purpose of [Taxpayer], as determined
solely and exclusively by [Taxpayer]. [Taxpayer] . . . controls all access to the [Annual
Event] and all access and use of and to its property and exhibit site and reserves the right to
exclude anyone at anytime from the [Annual Event]. . . .
Taxpayer’s Position
It is [Taxpayer’s] position that [Taxpayer’s] Exhibitors provide retail concessionaire
services involving the sale of food and drink as well as the sale of other tangible personal

Technical Assistance Advisement
Page 4 of 6
property within the premises of an airport . . . pursuant to a written license issued by
[Taxpayer] to each of its retail concessionaires (Exhibitors) which license does not grant
any interest in or to [Taxpayer’s] real property, does not convey any right to occupy any
specific, fixed, or particular space, and which does not grant exclusive possession to any
such space. Further, as a result of the terms and provisions of [Taxpayer’s] written license
and in accordance with Section 212.031(l)(a)l0., Florida Statutes, these persons
(Exhibitors) providing retail concession services involving the sale of food and drink or
other tangible personal property within the premises of . . . [an] Airport are not to be
subject to sales or use tax on any license to use the real property.
Requested Advisement
The Taxpayer requests that the Department issue a Technical Assistance Advisement declaring
that the Taxpayer’s Exhibitor License constitutes an exempt license to use the property within the
premises of an airport as provided in section 212.031(1)(a)10., F.S.
Applicable Authority and Discussion
Section 212.031(1)(a), F.S., imposes sales tax on the privilege of engaging in the leasing of, or the
granting of a license to use, real property. Section 212.031(1)(c), F.S., provides that “[f]or the
exercise of such privilege, a tax is levied in an amount equal to 6 percent of and on the total rent or
license fee charged for such real property by the person charging or collecting the rental or license
fee.” The “total rent or license fee charged” is defined to include “payments for the granting of a
privilege to use or occupy real property for any purpose, and shall include base rent, percentage
rents, or similar charges.”
Section 212.031(1)(a)10., F.S., provides an exemption when real property is licensed to “[a]
person providing retail concessionaire services involving the sale of food and drink or other
tangible personal property within the premises of an airport.” The exemption shall not include the
leasing of tangible personal property. Therefore, in order to qualify for the cited exemption, the
following three requirements must be met: (1) the agreement between the Taxpayer and Exhibitor
must constitute a license to use real property; (2) the Exhibitor must provide retail concessionaire
services involving the sale of food and drink or other tangible personal property; and (3) the
property being licensed must be within the premises of an airport.
Whether an instrument is a license or a lease depends generally on the manifest intent of the
parties gleaned from a consideration of the instrument’s entire contents.
A lease is generally defined as a grant of an estate in real property for a limited term, subject to
certain conditions, for consideration in the form of rent or other recompense. See, 51C C.J.S.
Landlord and Tenant ss. 202(l), 202(3); Black’s Law Dictionary, Rev. 4th Edition, page 1035;
Devore v. Lee, 158 Fla. 608, 30 So. 924 (Fla. 1947). Cf. 34 Fla. Jur. 2d Landlord and Tenant s.1.
Conversely, a license is considered a personal privilege to use or enter on a parcel of property or

Technical Assistance Advisement
Page 5 of 6
occupy the property for a specific purpose. A license does not generally convey an interest or
estate in the property. In general, a mere permission to occupy the land of another person for any
purpose is termed a license. The mere use of the term license does not, however, make the
relationship one of licensor-licensee. 51C C.J.S. Landlord and Tenant s. 202(6), pp. 525, 526;
Black's Law Dictionary Rev. 4th Edition, page 1068.
32 Am. Jur., Landlord and Tenant, Section 5, provides the following:
Distinctions between Lease, License, and Easement. It is recognized that it is often
difficult to distinguish between a license and a lease. A license in the law of real property
is defined to be an authority to do some act or a series of acts on the land of another
without passing an estate in the land. It amounts to nothing more than an excuse for the
act, which would otherwise be a trespass. It is ordinarily not assignable. A demise or lease
is more than a license to enter and occupy for a specific purpose, but the fact that the
privilege is paid for even by an annual payment does not prevent it from being a license
merely. A leasehold, including an estate for years, is an interest in real property. Indeed,
the distinguishing characteristic of a lease is that it carries a present interest and estate in
the land for the period specified, and the criterion seems to be the right to the possession of
the land, and if such right is not conferred, the transaction is to be deemed a license, profit,
or easement. A license to do an act upon land involves the exclusive occupation of the
land by the licensee, so far as is necessary to do the act, and no further, whereas a lease
gives the right of possession of the land, and the exclusive occupation of it for all purposes
not prohibited by its terms.
The test to be used to distinguish a lease from a license is whether the contract gives exclusive
possession of particularly described premises against all the world, including the owner (except to
inspect at reasonable times), in which case it is a lease, or whether it merely confers a privilege to
occupy under the owner, in which case it is a license.
Review of the Exhibitor License verifies that the Taxpayer’s agreement with exhibitors, for the use
of Taxpayer’s property, constitutes a license. The Exhibitor License does not grant exclusive
possession of particularly described premises. The Exhibitor License grants the Exhibitor
permission to occupy the Taxpayer’s property to sell “[o]nly those products documented . . . as
approved by [Taxpayer].” The Taxpayer maintains control of “all access and use of and to its
property and exhibit site.”
Florida Statutes do not provide a definition for the term “concessionaire,” as used in section
212.031(1)(a)l0., F.S. Rule 12A-l.070(1)(b)3., F.A.C., defines the term “retail concessionaire” to
mean “any person who makes sales of food or drink directly to the general public . . . .” Your
letter provides that the Exhibitors make sales of food and drink and other tangible personal
property at the Annual Event. The Exhibitors are considered “retail concessionaires,” as defined
in Rule 12A-l.070(1)(b)3., F.A.C.

Technical Assistance Advisement
Page 6 of 6
Based on the information provided in your letter and the provided aerial photograph of last year’s
Annual Event, the Taxpayer’ property is within the premises of an airport.
Conclusion
The Taxpayer’s Exhibitor License constitutes an exempt license with persons providing retail
concession services involving the sale of food and drink or other tangible personal property within
the premises of an airport, as provided in section 212.031(1)(a)10., F.S. The Taxpayer should not
charge tax on payments received from Exhibitors that make sales of food and drink and other
tangible personal property at the Annual Event.
However, an Exhibitor License that is granted to an exhibitor that does not provide retail
concession services involving the sale of food and drink or other tangible personal property does
not meet the cited exemption. Agreements with exhibitors that do not provide retail concession
services involving the sale of food and drink or other tangible personal property are subject to
sales tax as the license to use real property.
This response constitutes a Technical Assistance Advisement under section 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 section 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 that 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., and are subject to disclosure to the public under the conditions of
section 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,

Brinton Hevey
Tax Law Specialist
Technical Assistance and Dispute Resolution
850/717-6839
Record ID: 104497